The Allahabad High Court (Lucknow Bench) has disposed of two intra-court appeals filed by warring spouses regarding the custody and visitation rights of their minor son. The Division Bench, comprising Chief Justice Arun Bhansali and Justice Jaspreet Singh, declined the father’s request to transfer the custody of the 7-year-old child to him or, alternatively, to send the child to a boarding school. The Court emphasized that in the absence of any professional evaluation or expert report, it cannot order sending the child to a boarding school merely on the “asking of the father.” The Bench concluded that the earlier visitation order dated January 6, 2022, was “robust” and “good enough,” thereby setting aside subsequent modifications that made only “cosmetic changes.”
Background of the Case
The appeals (Special Appeal No. 221 of 2023 filed by the father and grandparents, and Special Appeal No. 225 of 2023 filed by the mother) arose from a matrimonial dispute between Dr. Dinesh Kumar Agarwal and Smt. Deepti Goel. The couple, married in 2017, have a son born in July 2018. Following matrimonial discord, the mother left her matrimonial home in Dhanbad to reside in Lucknow with the child.
In July 2020, the father allegedly took the child from Lucknow to Dhanbad without the mother’s consent. This led to the filing of a Habeas Corpus petition by the mother. The matter reached the Supreme Court, which, on January 5, 2022, directed the father to hand over the child to the mother. Consequently, on January 6, 2022, a Single Judge of the High Court handed custody to the mother and passed a detailed order granting visitation rights to the father.
Subsequently, alleging non-compliance and seeking modifications, multiple applications were filed by both parties. On April 7, 2023, the Single Judge modified the visitation order. Aggrieved by this modification, both parties filed the instant intra-court appeals.
Arguments of the Parties
The Father’s Contentions: Represented by Senior Advocate Prashant Chandra, the father argued that the mother had been recalcitrant and obstructed his visitation rights despite court orders. He contended that the child was being “brainwashed” and subjected to “manipulative conditioning” against him.
The father sought custody, asserting he could provide a stable environment and was financially sound. Alternatively, he proposed sending the child to a reputed boarding school to ensure holistic development and a neutral environment, offering to bear all expenses. He relied on several Supreme Court judgments, including Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka and Sheoli Hati v. Somnath Das, to argue that the court should exercise parens patriae jurisdiction for the child’s welfare.
The Mother’s Contentions: Senior Advocate H.G.S. Parihar, appearing for the mother, argued that the child had been with her since birth (except for the period he was removed by the father) and was performing well academically in a good school in Lucknow.
He submitted that the father’s request for a boarding school was a “novel method to get the child removed from the custody of the mother” cloaked as welfare. He highlighted that the child, aged 7, was comfortable with the mother and that the father’s substantive petition under the Guardians and Wards Act was still pending before the Family Court.
Court’s Analysis and Observations
The Bench observed that the “recalcitrance of the spouses resulted in rendering the orders and the efforts made by the Co-ordinate Bench, unworkable,” with the child being made a “scapegoat.”
On Custody: The Court noted that the custody of the child was restored to the mother on January 6, 2022, following Supreme Court intervention, and a subsequent Habeas Corpus petition by the father was dismissed in October 2022. The Court stated:
“The child is about 7 years of age at present and at this stage where there are no accentuating circumstances on record, which can indicate that the child is living in a toxic household with his mother, in such circumstances, uprooting the child from his mother and permitting the custody of the child to the father may not be in the fitness of things.”
On Boarding School: Addressing the father’s plea to send the child to a boarding school, the Court held that such a decision “cannot be an answer in black and white” and requires psychological evaluation. The Court observed:
“The Court has to ensure that in a legal battle between the conflicting couple, the child is not used as a weapon nor is he victimized… In absence of any professional evaluation or expert report or specific circumstances, this Court observes that it cannot order to send the son to the boarding school.”
The Court further remarked that it would not take such a decision “merely on the asking of the father or only to smoothen the implementation of the visitation order.”
On Visitation Rights: The Division Bench compared the original visitation order of January 6, 2022, with the modified order of April 7, 2023. It found that the original order was “good enough to protect the visitation rights of the father” and that the modification was unnecessary.
“By making cosmetic changes and including the right of grandparents to visit the child in itself was not required when the initial order itself did not prohibit the grandparents.”
Decision
The High Court disposed of the appeals with the following directions:
- Custody: The Court declined to transfer custody to the father at this stage, leaving it open for the Family Court to decide based on evidence in the pending guardianship proceedings.
- Boarding School: The Court refused to order sending the child to a boarding school but granted liberty to the parties to place expert reports before the Family Court regarding the feasibility of such a move.
- Visitation: The Court ruled that the visitation arrangement in the order dated 06.01.2022 shall be adhered to, setting aside the modifications.
- Expedited Trial: The Family Court was directed to accord priority to the pending case under the Guardians and Wards Act.
The Bench concluded by expressing hope that “the warring parties, for the sake of welfare and best interest of their son, may not adopt a recalcitrant attitude rather the child be permitted to have the love and affection of both his parents.”
Case Details:
- Case Title: Dr. Dinesh Kumar Agarwal and others Vs. State of U.P. and others (and connected appeal)
- Case Number: Special Appeal No. 221 of 2023
- Coram: Chief Justice Arun Bhansali and Justice Jaspreet Singh
- Counsel for Appellants: Mr. Prashant Chandra (Sr. Adv.), Ms. Meha Rashmi, Mr. Ashok Kumar Singh
- Counsel for Respondents: C.S.C., Mr. H.G.S. Parihar (Sr. Adv.), Ms. Meenakshi Singh Parihar
