Allahabad High Court
Dr. Dinesh Kumar Agarwal vs Mrs. Dipti Agarwal, on 27 August, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW Neutral Citation No. - 2025:AHC-LKO:50468 Reserved on:- 28.07.2025 Pronounced on:- 27.08.2025 Court No. - 27 Case :- CONTEMPT APPLICATION (CIVIL) No. - 1214 of 2022 Applicant :- Dr. Dinesh Kumar Agarwal Opposite Party :- Mrs. Dipti Agarwal, Counsel for Applicant :- Ashok Kumar Singh,Ashok Kumar Singh,Gantavya Counsel for Opposite Party :- Sushil Kumar Singh,Anilesh Tewari,Aprajita Bansal,Manoj Kumar Dubey Hon'ble Rajeev Singh,J.
1. Heard Sri Prashant Chandra, learned Senior Advocate assisted by Ms. Neha Rashmi, learned counsel for the applicant and Sri Hari Govind Singh Parihar, learned Senior Advocate assisted by Sri J.N. Shukla, learned counsel appearing for the respondent.
2. The instant contempt application has been filed by the applicant alleging disobedience of the order dated 06.01.2022 passed by the writ Court in Habeas Corpus Writ Petition No. 9307 of 2020.
3. Learned counsel for the applicant has submitted that marriage of the applicant was solemnized with the respondent and out of their wedlock, one male child was born. Later on, some matrimonial dispute arose between them and they started living separately. As the child was residing with the applicant, the respondent filed Habeas Corpus Writ Petition No. 9307 of 2020 for handing over the custody of the child. The said petition was disposed of on 14.12.2021 with the observation that custody of the child be handed over to the mother. The order dated 14.12.2021 was challenged before Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No. 10080 of 2021, which was dismissed on 05.01.2022.
4. In compliance of the order dated 14.12.2021, the child was handed over to the mother vide order dated 06.01.2022. The writ Court also passed direction for visitation of the child to the applicant. The order dated 06.01.2022 passed in Habeas Corpus Writ Petition No. 9307 of 2020 is as under:-
“Called on.
Today on 06.01.2022, Sub Inspector Sri Durga Prasad Yadav, PNO 930440020 and lady Constable Ms. Antima Singh PNO 112304472, Police Station, District Lucknow appeared before the Court to produce the child Master Devansh Agarwal with his father Dr. Dinesh Agarwal in Court in compliance of judgment and order dated 14.12.2021 and subsequent order dated 21.12.2021.
In accordance with the order dated 05.01.2022 passed in Special Leave to Appeal (Crl.) No. 10080 of 2021 (Dr. Dinesh Agarwal Vs. State of U.P. and others) by Hon’ble Apex Court with direction to hand over the child to mother at 2:00 p.m., the child is handed over today to the mother Smt. Deepti Goel.
The father Dr. Dinesh Agarwal, private opposite party no. 3 and mother, next friend of the child Master Devansh Agarwal, Smt. Deepti Goel both have signed the ordersheet with regard to delivery of child to the mother and receiving by the mother, the petitioner’s next friend.
In the order dated 14.12.2021, order as to visitation right to father was kept contingent upon the handing over the child by opposite party no.3, Dr. Dinesh Agarwal to the petitioner’s next friend Smt. Deepti Goel, therefore this is the occasion to pass the order with regard to right of visitation of the child to the father.
(i) On conversation with opposite party no. 3, Dr. Dinesh Agarwal, father of the child Master Devansh Agarwal, as per his request, on every weekend (Sunday) shall visit the child at the residence of petitioner’s next friend Smt. Deepti Goel i.e. B-47, Sector-H, Aliganj, District Lucknow where the petitioner’s next friend the mother Smt. Deepti Goel use to reside with the child.
(ii) In case, for any reason if opposite party no. 3 Dr. Dinesh Agarwal fails to visit the child on Sunday, after informing the next immediate day after Sunday within one or two days to the petitioner’s next friend Smt. Deepti Goel, may visit the child on that altered day.
(iii) Reciprocally, the petitioner’s next friend, mother of the child Master Devansh shall ensure to remain present at the House No. B-47, Sector-H, Aliganj, District Lucknow for the purpose of complying with the direction as to the visitation right given to the father or on any other date as stipulated herein-above. The mother shall not leave or change the house of her abode with child without seeking prior permission of the Court and informing to the father of the child, opposite party no. 3. She will not leave with child Master Devansh the jurisdiction of the Court without prior permission as directed herein-above.
(iv) The father, opposite party no. 3 will have the right to visit the child Master Devansh within 10 a.m. to 5 p.m. in day time in the presence of petitioner’s mother or any other family members of her parental house, in their supervision and control, however they are not permitted to make any obstruction in such visiting of the child by the father.
(v) The father of Master Devansh, opposite party no. 3, will have a right to contact with the child Master Devansh his son, telephonically either audio or video mode. For this purpose the mother will facilitate such telephonic connection with father of the child. It may be appropriate for both of them (father and mother of the child Master Devansh) to fix a particular time for the purpose of telephonic conversation with child.
(vi) The father if wants to give any gift in love and affection with child, brings anything for his use or do something necessary for well being of child, the mother, petitioner’s next friend or any of the family members of her parental house will not make any forbiddance or obstruction in such acts. However, father shall keep in mind that such things would be safe in use and occupationed by the child.
(vii) Since the child is of so young age that still is under scheduled vaccination prescribed by the health department, the record of vaccination and as to the further vaccination shall be handed over by the father Dr. Dinesh Agarwal to the mother Smt. Deepti Goel as soon as possible within 15 days from the date of order so that further vaccination, if any, may be given timely without failure on her part.
(viii) It would be the duty of the father, whenever he visits the child to maintain the safe distance, put mask and keep the hand sanitized and to follow the protocol of the Covid-19 guidelines.
(ix) It is expected that the father till now has been twice vaccinated. If it is not so, he will ensure to be vaccinated twice as soon as possible. Mother shall also keep herself vaccinated twice.
(x) In case, the father is twice vaccinated with Covid-19 Vaccine, the rider of the safe distance and putting mask need not to be followed during visitation.
Looking into the pendency of matrimonial petition in competent court of law, the request of opposite party no. 3 with regard to overnight stay during visit to the child in the home of the petitioner’s next friend, the mother of the child, is not permitted. However, this would be subject to the result of possible mediation held between them in such legal proceeding.”
5. Submission of learned counsel for the applicant is that despite directions of the writ Court, proper visitation is not being facilitated by the respondent in terms of aforesaid order dated 06.01.2022, whereby visitation rights were granted to the applicant to meet with the child on every Sunday for a period of seven hours, appreciating that the father resides in a different State more than 800 kilometers away. It was also directed that the child should remain in touch with his father at least twice in a week by electronic means for the purpose that the bond between the father and the child continues to subsist, leading to a healthy development of the child.
It has further been submitted that instead of meaningful interaction for seven hours, a formal meeting for two hours is being arranged by the respondent, during which time, the child is normally surrounded by the respondent’s unmarried sister, mother and other family members and, obviously in their presence, proper interaction with the child is not possible for the applicant. Moreover, the respondent does not have any source of income to groom the child in best manner.
It has also been submitted that the respondent moved an application for reducing visitation schedule to one Sunday per month for maximum one to two hours only. After detailed hearing, the application was disposed of on 07.04.2022, against which, two special appeals, i.e, Special Appeal Nos. 221/2023 and 225/2023 were filed by the parties and though initially, the Division Bench, vide order dated 06.07.2023, reduced the period of visitation from seven hours to five hours, later on after interacting with parents as well as the child, the aforesaid time of visitation was increased to ten hours vide order dated 27.03.2025. The said order was modified by the Division Bench on 09.05.2025 directing that the child must go out and see the world around him for his normal and proper development, he must also engage himself in physical activities.
It has next been submitted that video calls, as directed vide order dated 06.01.2022, were also to be made at least twice a week, but the same could never be done at the prescribed time, as either the phone of the respondent was switched off or the mobile number was got changed, which made it impossible for the father to contact the child. Thereafter, vide order dated 08.12.2022 passed in the present case, this Court directed that in case the respondent fails to ensure the compliance of the directions of the writ Court, order shall be passed for framing of charges.
6. Learned counsel for the applicant has submitted that the applicant, who runs his own hospital at Dhanbad, is a renowned spine surgeon and the child is entitled for getting privileges from his father for his better development and for getting comfort of the material of the world. The respondent, on the other hand, is unemployed and a dependent lady.
Learned Senior Counsel also proposed that in the event, the respondent is violating the directions of the writ Court, the Court, under the parens patriae jurisdiction, may pass order to send the child to a Boarding School, where he would be properly taken care of, groomed and would have an occasion to mix around with the children of his own age.
It has been added by learned counsel for the applicant that being a Court of record, inherent powers can be exercised under Article 215 of Constitution of India and the minor child may be sent to Boarding School with such arrangements, as may be deemed just and necessary, to divide the period of vacation of the child in the company of his parents equally.
While giving the list of Boarding Schools, it has been submitted by Sri Chandra that the applicant is ready to bear all the expenses of the Boarding School.
7. The list of the top Boarding Schools produced before this Court is as under:-
Sr. No.
School
Address
Board
Grades
Gender
1.
Doon International School (Riverside Campus)
University Nanda Ki Chowki, 4 kms from Petroleum Pondha, Dehradun, Uttarakhand 248007
CBSE
Ist to 12th
Co-ed
2.
Ganga International School
Rohtak Road, Hiran Kudna, New Delhi, Delhi, 110041
CBSE
Ist to 12th
Co-ed
3.
Roots Country School
Trimount View, P.O. Baghi, Teh, Kotkhai, Himachal Pradesh, 171225
CBSE
Ist to 12th
Co-ed
4.
GD Goenka International School, Rohtak
8th Mile Stone, Sonepat Road, Rohtak, 124001, Haryana
CBSE
Ist to 12th
Co-ed
5.
Pinegrove School
Kasauli Road, Dharampur, Himachal Pradesh- 173209
CBSE
Ist to 12th
Co-ed
6.
New Era Public School
Chesson Road, Panchgini Satara District, Maharashtra- 412805
CBSE
Ist to 12th
Co-ed
7.
Birla Public School, Pilani
Vdya Niketan Birla Public School, Pilani Rajasthan, 333031
CBSE
Ist to 12th
Co-ed
8.
Emerald Heights International School
A.B. Road, Rau, opposite Akashwani, Indore, M.P., 453331
CBSE
Ist to 12th
Co-ed
9.
The Asian School
Asian Acres, Vasant Vihar, Indra Nagar Colony, Dehradun, Uttarakhand, 248006
CBSE
Ist to 12th
Co-ed
10.
Vidyasagar International School
Jafarpur Majra, Gharora, Greater, Manjhawali Road, Tigaon, Haryana, 121101
CBSE
Ist to 12th
Co-ed
8. In support of his submissions, learned counsel for the applicant has placed reliance on the judgment of Hon’ble Supreme Court in the case of Balwantbhai Somabhai Bhadari Vs. Hiralal Somabhai Contractor (Deceased) and Ors. reported in (2023) 17 SCC 545, specifically on para nos.80, 81 and 86, which read as under:-
“80.We now proceed to answer the third question formulated by us as regards the power of the contempt court to declare any contemptuous transaction non est or void.
81.A three-Judge Bench of this Court inSBIv.Vijay Mallya[SBIv.Vijay Mallya, (2024) 12 SCC 85 : 2022 SCC OnLine SC 826] , in clear terms said that apart from punishing the contemnor for his contumacious conduct, the majesty of law may demand that appropriate directions be issued by the Court so that any advantage secured as a result of such contumacious conduct is completely nullified. The approach may require the Court to issue directions either for reversal of the transactions in question by declaring said transactions to be void or passing appropriate directions to the authorities concerned to see that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him.
86.This Court inDDAv.Skipper Construction Co. (P) Ltd.[DDAv.Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622] , held that the legal consequences of what has been done in breach of or in violation of the order of stay or injunction should be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction to not let the defaulting party enjoy any undue advantage. This Court while relying upon cases decided by various High Courts held as under : (SCC pp. 635-37, paras 18-21).
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts.
InClarkev.Chadburn[Clarkev.Chadburn, (1985) 1 WLR 78] Sir Robert Megarry V-C observed : (WLR pp. 80-81)
“I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal.If by such disobedience the persons enjoined claim that they have validly effected some change in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
19. To the same effect are the decisions of the Madras and Calcutta High Courts inCentury Flour Mills Ltd.v.S. Suppiah[Century Flour Mills Ltd.v.S. Suppiah, 1975 SCC OnLine Mad 73 : AIR 1975 Mad 270] andSujit Palv.Prabir Kumar Sun[Sujit Palv.Prabir Kumar Sun, 1985 SCC OnLine Cal 146 : AIR 1986 Cal 220 : (1985-86) 90 CWN 342] . InCentury Flour Mills Ltd.v.S. Suppiah[Century Flour Mills Ltd.v.S. Suppiah, 1975 SCC OnLine Mad 73 : AIR 1975 Mad 270] it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. InSujit Pal[Sujit Palv.Prabir Kumar Sun, 1985 SCC OnLine Cal 146 : AIR 1986 Cal 220 : (1985-86) 90 CWN 342] a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it.
9. Further relying on the judgment of Hon’ble Supreme Court in the case of Rosy Jacob Vs. Jacob A. Chakramakkal reported in (1973) 1 SCC 840, learned counsel for the applicant has submitted that it is settled law that as per the changing circumstances, the orders can be modified at any stage and by any Court.
Relevant Para No.18 of the judgement, i.e., Rosy Jacob Vs. Jacob A. Chakramakkal (supra) is as under:-
“18.The appellant’s argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation.”
10. Next, relying on the judgement of Hon’ble Supreme Court in the case of Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka reported in (1982) 2 SCC 544, learned counsel for the applicant has submitted that it is imperative for the child to be sent to a Boarding School in the circumstances, which have been created due to the contumacious conduct of the mother.
Relevant Para Nos.14, 26, 27, 28, 29 and 32 of the judgement, i.e., Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka are as under:-
14.Mr Desai, learned counsel for the appellant, has made the following submissions:
1.In deciding the question of custody of the minor, the Court should be guided only by the consideration of the welfare of the minor. Mr Desai in this connection has referred to Section 49 of the Parsi Marriage and Divorce Act, 1936, Sections 41 and 42 of the Indian Divorce Act, 1869, Section 26 of the Hindu Marriage Act, 1955 and Section 38 of the Special Marriage Act, 1954 containing similar provisions and he has strongly relied on the decision of this Court inRosy Jacobv.Jacob A. Chakramakkal[(1973) 1 SCC 840 : AIR 1973 SC 2090 : (1973) 3 SCR 918] .
2.In the facts and circumstances of this case, the father cannot be considered to be a fit person to have the custody of the child and the custody of the child should be entrusted to the mother. In support of this submission that the father is not the fit person to be given the custody of the minor child, Mr Desai has referred to the various proceedings between the parties, the orders passed thereon and the observations made by learned Judges of the Bombay High Court from time to time. Mr Desai has argued that the father in his self-interest to have the minor child on his side and under his control, has been trying to poison the mind of the daughter against the mother for whom the daughter has a very great affection with the object of alienating the daughter from the mother without any regard to the daughter’s sentiments and without appreciating the very great damage that he is doing to the daughter and this act of the father has caused a tremendous amount of psychological strain, resulting in a near nervous breakdown of the daughter. Mr Desai has argued that the minor being a daughter and now of the age of 11 years needs the company and guidance of her mother. It is the argument of Mr Desai that the mother has no particular self-interest in obtaining the custody of the child and her only concern is the welfare of her daughter, and she has spent and is prepared to spend whatever amount is necessary for the welfare of the daughter and she is also in a position to do so. Mr Desai has commented that the main ground on which the learned Single Judge of the High Court and also the learned Judges of the Division Bench had not given the custody of the minor to the mother is that the mother is a working girl and she does not have time to devote to the daughter and it is his comment that this is really no ground. He further comments that the father in most cases has to work for a living and in the present case the father earns his living by plying a taxi at present. He argues that in modern times, particularly in view of the present economic condition, in very many cases, both the husband and the wife have to work for a proper living and the mere fact that the father or the mother has got to attend to work, cannot disqualify the father or the mother. Mr Desai has submitted that apart from the fact that the mother is a working girl, there is nothing against the mother which would disentitle her to the custody of her daughter and in this connection Mr Desai has referred to the judgments of the learned Single Judge and also the Division Bench of the Bombay High Court. Mr Desai has further pointed out that the learned Single Judge gave the custody of the daughter to the father though the daughter had clearly expressed her desire to live with her mother.
3.The best interest of the minor in the peculiar facts and circumstances of this case will be served only if the minor is removed from the unhealthy atmosphere of home-life and is placed in a Boarding House where she will have healthy normal growth in the company of other children of her age under the care and supervision of competent teachers, unimpeded by the conspiratorial attitude of the father to destroy her feelings for the mother. In support of this submission, Mr Desai has referred to the various orders passed in which the learned Judges of the Bombay High Court have recorded their impressions after interviewing the girl; and Mr Desai has placed particular reliance on the report of the Social Welfare Expert, appointed by the Bombay High Court.
26.In the facts and circumstances of this case we are however, not inclined to interview the minor daughter, as we are satisfied in the present case that the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrassing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will enure to her benefit and welfare. Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the court’s consideration to decide what should be the course to be adopted for the child’s welfare. The letters addressed by the daughter to her mother from Panchgani and also a letter addressed by her to her aunt (father’s sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.
27.We are, therefore, unable to accept the contention of Mr Bhandare that there is any duty or obligation on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question of her custody and that we should send for the minor in the present case and interview her to ascertain her wishes before we proceed to decide the question of her custody.
28.Home influence plays a very important role in shaping the life of every child. Influence of a happy home where the children are brought up under the affectionate care and guidance of their parents and other relations, all concerned with the welfare of the children, no doubt, enables the children to lead a normal healthy life and materially contribute to their welfare. In a happy home the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents. In such a case, the court is naturally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to see to their interest and welfare. It may, however, be mentioned that even in cases of happy homes where the children have a very congenial atmosphere for their healthy growth and are very well looked after by their parents, the parents, in many cases do send their children to Boarding Schools. The parents do so, as the parents feel that the interest and welfare of children will be better served, if they are sent to a good Boarding School where the children, on their own and in the company of their fellow students, will have a greater and better opportunity of developing their personality and shaping themselves properly under the supervision of competent teachers to enable them to fashion their lives properly and face bravely and squarely the hard realities of the world. A good Boarding School has very many advantages and is in a position to enforce proper discipline which is obviously necessary for healthy growth of every child. It is well known that mainly because of such desire on the part of very many of the parents to send their children to a good Boarding School, seats are hardly available in a good Boarding Institution these days and seats have to be booked well in advance. Loving parents who send their children to Boarding Schools for education, have generally to do so against the wishes of the children. Children will naturally not be inclined to stay away from their affectionate parents and to leave their happy homes where they enjoy not only the affection and care of their parents but also all the homely comforts and they do not like to be subjected to the rigours of strict discipline enforced in a Boarding Institution. Children sent to a Boarding Institution from happy homes, also find it difficult to adjust themselves to the environment of a Boarding School and may not feel very happy. Fond parents bearing only in mind the interest and welfare of their children still send their loving children to Boarding Schools against the wishes of the children, sacrificing themselves the company of their children at home, and persuade their children to adjust themselves in the Boarding School and they go on encouraging their children to enable them to settle down in that institution. Parents do so at considerable sacrifice to themselves, only in the hope and expectation that the interest and welfare of the children will be best served. It is common experience that children who are sent from happy homes to Boarding Institutions and who do not feel easy and comfortable in the Boarding Institution when they join such institution, soon adjust themselves to the new environment and come to like the Boarding Institution where in the company of fellow students they lead a healthy and happy life under the guidance and care of competent teachers to the joy of their parents.
29.It is also no doubt true that children who stay at home with their parents and do not go to Boarding Schools may also be very well disciplined in life and may have a very healthy, happy and normal growth while staying at home. Indeed, the majority of children in our country are brought up in their homes, as very many of the parents are not in a position to bear the expenses of a Boarding School for their children. The children grow well and happily in homes under the affectionate care and guidance of their parents, so long as they continue to enjoy the blessings of a happy home. A broken home, however, has a different tale to tell for the children. When parents fall out and start fighting, the peace and happiness of home life are gone and the children become the worst sufferers. It is indeed sad and unfortunate that parents do not realise the incalculable harm they may do to their children by fighting amongst themselves. The husband and the wife are the persons primarily responsible for bringing the children into this world and the innocent children become the worst victims of any dispute between their father and the mother. Human beings with frailties common to human nature, may not be in a position to rise above passion, prejudice and weakness. Mind is, indeed, a peculiar place and the working of human mind is often inscrutable. For very many reasons it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company. Any husband and wife who have irreconcilable differences, forcing them to part company, should, however, have sense enough to understand and appreciate that they have their duties towards their children. In the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences. Even when any husband and wife are not in a position to reconcile their differences and are compelled to part, they should part in a way as will cause least possible mischief to the children.
32.The effect on the little girl of the embittered relationship between her parents and the attempt of the father to poison the mind of the daughter against her mother and to alienate her from the mother has been simply disastrous. The intelligent and sensible girl, distressed at the acrimony between her parents, who wanted to spend her time with each of her parents as she is deeply attached to both, as recorded by Lentin, J. in his order dated June 28, 1979, was on the verge of near nervous breakdown as noted by the Division Bench in its judgment dated July 31, 1981. The various orders passed in between, which we have set out at length also, indicate what great mental strain and agony the little girl had suffered because of the acrimonious dispute between her parents. During this period of two years, the girl had been under home influence, as she had been staying with her quarrelling parents in terms of the various orders of the High Court. The little girl also had been compelled to make her appearances in Court from time to time. The facts and circumstances clearly establish that the effect of home influence on the minor in the present case has been to reduce a bright, happy and sensible child to a state of complete misery; and, the extreme psychological strain on the sensible mind of the little girl has caused almost a near nervous breakdown. When the atmosphere in a house, vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife, causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents for each of whom she has great affection, the healthy and normal growth of the child is bound to be seriously affected. In the interest and for the welfare of the child in such a case, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension. In such a case, the proper and best way of serving the interest and welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embittered relationship between her parents does not easily and constantly affect her tender mind.
11. Relying on the judgment of Hon’ble Supreme Court in the case of Sheoli Hati Vs. Somnath Das reported in (2019) 7 SCC 490, learned counsel for the applicant has submitted that in this judgment, Hon’ble Supreme Court held that the mother had not allowed the visitation as directed by the Court and an effort was made to alienate the child from the father, whereupon the request made by the father to allow the child to be sent to a Boarding School was acceded to in the interest and welfare of the child and to keep the child away from negative influence.
Relevant Para Nos.15 and 17 of the judgement, i.e., Sheoli Hati Vs. Somnath Das (supra) are as under:-
15.Before we close, few observations on the issues which have arisen before us need to be made. The present is a case, where limited issue has arisen regarding giving education to the child in boarding school or to permit the status quo regarding education of the child as was on the date when the Family Court passed order dated 31-3-2016. When the child has to go in the environment, where there is marital discord between her parents affecting the peace of mind of all including the parents and children, child suffers physical and mental distress. The ill consequences of the discord between mother and father affect the child in her normal upbringing and is a negative factor on child’s personality and upbringing. This Court inVivek Singhv.Romani Singh[Vivek Singhv.Romani Singh, (2017) 3 SCC 231 : (2017) 2 SCC (Civ) 1] , has discussed the term Parental Alienation Syndrome. In para 18 of the judgment, following was observed : (SCC p. 245)
18. Psychologists term it as The Parental Alienation Syndrome. It has at least two psychological destructive effects:
(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.
(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent’s distortions of reality.
17.It is well settled that while taking a decision regarding custody or other issues pertaining to a child, welfare of the child is of paramount consideration. This Court inGaurav Nagpalv.Sumedha Nagpal[Gaurav Nagpalv.Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] , had the occasion to consider the parameters while determining the issues of child custody and visitation rights, entire law on the subject was reviewed. This Court referred to English Law, American Law, the statutory provisions of the Guardians and Wards Act, 1890 and provisions of the Hindu Minority and Guardianship Act, 1956, this Court laid down following in paras 43, 44, 45, 46 and 51 : (SCC pp. 55-57)
43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the welfare of the child and not rights of the parents under a statute for the time being in force.
44. The aforesaid statutory provisions came up for consideration before courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.
45. InSaraswatibai Shripad Vadv.Shripad Vasanji Vad[Saraswatibai Shripad Vadv.Shripad Vasanji Vad, 1940 SCC OnLine Bom 77 : ILR 1941 Bom 455 : AIR 1941 Bom 103] the High Court of Bombay stated : (SCC OnLine Bom)
It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court.It is the welfare of the minor and of the minor alone which is the paramount consideration
46. InRosy Jacobv.Jacob A. Chakramakkal[Rosy Jacobv.Jacob A. Chakramakkal, (1973) 1 SCC 840] , this Court held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. Thepoweranddutyof the court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
51. The word welfare used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising itsparens patriaejurisdiction arising in such cases.
12. However, on having been refused by the respondent, who was present before this Court, to send the child to the Boarding School, learned counsel for the applicant has submitted that as the direction in relation to the visitation right is being violated by the respondent, she may be punished accordingly. Learned counsel for the applicant reiterated that necessary direction may be issued for sending child to the Boarding School.
13. Sri Hari Govind Singh Parihar, learned Senior Advocate appearing for the respondent, while drawing attention on the documents and photographs annexed with the pleadings, has submitted that in pursuance of the directions of the writ Court, the applicant is allowed to meet with the child and the child is also allowed to speak with the applicant telephonically, and in the event of any technical fault, by which, the connectivity was not available for conversation of the father and the child, it cannot be said that the respondent violated the directions of the writ Court.
It has further been submitted by Sri Parihar that the child was forcibly taken away by the applicant and under the order of Hon’ble Supreme Court, the child was handed over to the respondent.
It has also been submitted that the subject matter is already pending before the Division Bench of this Court for proper adjudication in the special appeals preferred by both the parties.
It has lastly been submitted that the judgments relied by learned counsel for the applicant for sending the child to Boarding School are not applicable in the present case, and the submissions advanced by the applicant’s counsel in the present proceedings can be raised before the Division Bench in the special appeals, wherein the order of the writ Court is under challenge. It has, thus, been submitted that the contempt application is liable to be dismissed.
14. Having considered the submissions of learned counsel for the parties and perused the record, it is apparent that the Habeas Corpus Writ Petition No. 9307 of 2020 was disposed of vide order dated 14.12.2021 with the observation that the respondent deserves to have custody of minor child and the applicant was directed to hand over the child to the respondent on 20.12.2021 at 2:00 pm. However, liberty was given to the father to get his rights of exclusive custody as guardian finally decided by the family court or court of Guardians and Wards Act. Relevant part of the order dated 14.12.2021 is as under:-
“84. Here, in the present case the detention of the minor child by the father is held illegal and without authority of law. Further, it has been observed by this court during pendency of petition several orders of the court with regard to the production of child and even to facilitate the meeting of the mother with the child were flouted over by the father. This is enough to show that father not only has taken away the child illegally from the custody of mother but also he had not left any opportunity for the child to see his mother or the mother to see her child. This conduct of the father if taken with the facts of differences between the husband and wife i.e., the mother of the child by reason of which they are separately residing and the fact that the F.I.R. under Sections 498-A, 336, 506 of I.P.C. and Section 3/4 of Dowry Prohibition Act is lodged against father with regard to cruelty in connection with the demand of dowry and abduction of the child, there is reason to believe that father in furtherance of his malice towards mother will also make brain wash of the child towards his mother that would not be in the interest and welfare of the child. The mother is competent enough to take care, maintenance and upbringing of the child with the love and affection. She deserves to have custody of the child removing the same from the father.
85. In view of the above circumstances, the writ of habeas corpus is required to be issued to opposite party no.3 to produce the child before this Court on 20.12.2021 for handing over the same to the petitioner no.2 (mother), however, he will be at liberty to get finally decided his rights of exclusive custody as guardian by the family court or court of Guardians and Wards Act which are competent to declare the same in the welfare of the child on the basis of evidences produced before the said courts.
86. Opposite party no.3 is directed to produce the child in the court at 2:00 p.m. on 20.12.2021 for handing over the custody of the child to the petitioner no.2 (mother). The order regarding the visitation rights of opposite party no.3 will be passed after the child is produced in the court.
87. The opposite party no.2, S.H.O. Police Station Aliganj, Lucknow is directed to ensure the production of child alongwith opposite party no.3 in the court on the date fixed for implementation of the order. The expenses for the journey with companion if any deposited in the court pursuant to the order dated 20.1.2021 still remains unexhausted which shall be paid to the opposite party no.3 by the Senior Registrar of the court after handing over the child by the opposite party no.3 to petitioner no.2 (mother).
88. The instant writ petition of habeas corpus is disposed of in the above said terms.
89. Office is directed to list for implementation of the order on 20.12.2021.
90. The Senior Registrar of the court is directed to promptly serve the copy of the judgment to the opposite party no.3 in person in addition to the service in ordinary process through e-mail also and to the Superintendent of Police, Dhanbad for facilitating the implementation of order through his official Fax and e-mail.
91. The opposite party no.2, S.H.O., Police Station Aliganj, Lucknow shall get copy of the order promptly and constitute a police team to recover the child with opposite party no.3, so as to ensure the production of the child before the court on the date of implementation.”
15. Having perused the record, it is also evident that the order dated 14.12.2021 was challenged by the applicant before Hon’ble Supreme Court in Special Leave to Appeal No. 10080 of 2021, which was dismissed on 05.01.2022 directing the father to hand over the child to the mother on 06.01.2022 at 2:00 pm. The order dated 05.01.2022 passed in Special Leave to Appeal No. 10080 of 2021 is as under:-
“We are not inclined to interfere with the judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed. Pending application(s), if any, shall stand disposed of.
However, the petitioner is directed to hand over the child to Respondent No.4 tomorrow i.e. 06.01.2022 at 2.00 p.m.”
16. Evidently, the child was produced before this Court on 06.01.2022 and he was handed over to the mother by giving visitation rights to the father. Thereafter, the orders passed in the habeas corpus writ petition were challenged by the applicant as well as the respondent in Special Appeal No. 221 of 2023 (Dr. Dinesh Kumar Agrawal and Ors. Vs. State of U.P. and Ors.) and Special Appeal No. 225 of 2023 (Master Devansh Agarwal (Detenue), thru. his mother Smt. Deepti Goel and Anr. Vs. Stae of U.P. and Ors.). It is undisputed that these special appeals are pending before the Division Bench.
The order dated 27.03.2025 passed by the Division Bench with the consent of the parties in Special Appeal No. 221 of 2023 and Special Appeal No. 225 of 2023 reads as under:-
“1. Both the parties are present and they are represented by their respective counsel.
2. The operative part of the order passed by this Court on 6.7.2023 operating between the parties reads as under :-
“The matter shall now be listed on 27.07.2023.
On the next date of listing, the appellant No.1/Dr. Dinesh Kumar Agarwal and respondent No.3/Smt. Deepti Agarwal shall be present before the Court.
In the meantime, the visitation arrangement in terms of the order dated 06.01.2022 passed in Habeas Corpus Petition No. 9303 of 2020 shall continue till the next date of listing.
However, we provide that while the father visits the child at his in-laws’ place, he shall be free to bring with him gifts or any food items or fruits, whereas the mother of the child will also be free to provide necessary foods.
We also provide that visitation period will be five hours.
We request the mother of the child that she shall try her level best to be present during the period the father visits the child.
We request the parents of the child to try to maintain a congenial atmosphere during the visitation hours”.
3. Having heard learned counsel for both the parties who are also present in person, we modify the operative part of the order dated 6.7.2023 to the extent that the visitation period restricted up to five hours is enhanced to ten hours. This period would begin at 10 O clock in the morning and last up to 8.00 p.m. on the date of visit. During this period, the wife namely Deepti Agarwal shall treat her husband well by providing him humble treatment and hospitality. The father shall be left at liberty to meet the child without interference of any relatives. The father shall maintain dignified standard of behaviour towards the child and family members. No obstruction shall be caused by any family member during the visitation period and hassle-free atmosphere shall be maintained at the time of ingress and egress for the father. Other conditions stipulated in the order dated 6.7.2023 shall remain intact until further orders of this Court.
4. This order has been passed as mutually agreed between the parties.
5. List/put up on 29.4.2025.”
17. Considering the aforesaid facts and discussions coupled with the fact that the dispute is being adjudicated by the Division Bench and the interim order dated 27.03.2025 (supra) was passed with mutual consent of the parties in the pending special appeals, i.e., Special Appeal No. 221 of 2023 (Dr. Dinesh Kumar Agrawal and Ors. Vs. State of U.P. and Ors.) and Special Appeal No. 225 of 2023 (Master Devansh Agarwal (Detenue), thru. his mother Smt. Deepti Goel and Anr. Vs. Stae of U.P. and Ors.), this Court is of the view that judgments relied by learned counsel for the applicant are not applicable in the present case, hence, no contempt is made out. Accordingly, the contempt application, being misconceived, stands dismissed.
Order Date :- August 27, 2025
Arpan
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