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CASE NO.: Appeal (crl.)  633 of 2005

PETITIONER: Rajesh K. Gupta

RESPONDENT: Ram Gopal Agarwala and others

DATE OF JUDGMENT: 28/04/2005

BENCH: CJI R.C. Lahoti & G. P. Mathur

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (Criminal) No. 1471 of 2005)

G.P. Mathur, J.

       Leave granted. 2.      This appeal by special leave has been preferred against the  judgment and order dated 10.3.2005 of Delhi High Court by which the  habeas corpus petition filed by the appellant was disposed of with  certain directions.

3.      The appellant Rajesh Kumar Gupta is an Advocate-on-Record  and is practicing in the Supreme Court of India since 1996.  His  marriage with Smt. Aruna Gupta daughter of Shri Ram Gopal  Agarwala (respondent No. 1 herein) took place on 24.8.1997 and a  daughter Rose Mala was born out of the wedlock on 5.6.2003.  It  appears that some differences have arisen between the appellant and  his wife Smt. Aruna Gupta and currently she is living along with her  parents, who have also been arrayed as respondent Nos. 1 and 2 in the  special leave petition.  The dispute here is about the custody of the  child Rose Mala, who is with her mother.  The appellant filed a  habeas corpus petition in the Delhi High Court seeking the custody of  his daughter Rose Mala mainly on the ground that she had been  abducted by respondent Nos. 1 and 2 on 6.3.2005 and that on account  of mental ailment with which his wife was suffering, the custody of  the child should be given to him. 4.      After hearing learned counsel for both the parties the High  Court disposed of the petition on 10.3.2005 and the relevant portion of  the order reads as under: -         "Mr. R.K. Jain, Sr. Advocate, appearing for the  parents and the wife submits that Mrs. Aruna Gupta is  ready and willing to give an undertaking to this Court  that she would not leave the jurisdiction of this Court  until an appropriate order in that regard is passed by the  competent Court.  We accept the said undertaking which  is given to us.  On query to Mrs. Aruna Gupta, she has  categorically stated that she would like to stay with her  parents and would like to retain the custody of the child  and that she is not in a position to leave the child.         Considering the facts and circumstances of the  case and also upon hearing the counsel for the parties and  also on talking to Mrs. Aruna Gupta and upon seeing and  observing the child who is found to be in good and  perfect condition, we are satisfied that the mother of the  child, Mrs. Aruna Gupta, could continue to retain the  custody of the child for the present.  Ordered

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accordingly.  It shall, however, be open to the petitioner  to seek remedy for establishing his right of guardianship  in accordance with law which is available to him in the  Civil Court.  If and when such a remedy is resorted to by  the petitioner by filing a petition, the same shall be  considered by the appropriate Court in accordance with  law.  The order passed today giving custody of the child  to the mother shall be subject to the order, if any, passed  by the civil court.  Till then, the custody of the child shall  remain with the mother, namely, Mrs. Aruna Gupta.         In terms of the aforesaid order this petition stands  disposed off."

5.      Shri Gopal Subramanium, learned senior counsel for the  appellant, has submitted that the marriage of the appellant with Smt.  Aruna Gupta was an arranged marriage, which took place on the basis  of an advertisement in the newspaper.  After marriage it was revealed  that Smt. Aruna Gupta was suffering from serious mental disorder of  paranoid schizophrenia for almost two decades.  She had been treated  in U.S.A. for her illness as at the relevant time her father Shri Ram  Gopal Agarwala was working there.  After the marriage when the  appellant discovered that she was suffering from mental ailment, she  was treated in the All India Institute of Medical Sciences.  In this  connection learned counsel has drawn the attention of the court to the  medical reports prepared in several hospitals where Smt. Aruna Gupta  had been admitted and had been given treatment for the disease  paranoid schizophrenia with which she has been suffering.  Learned  counsel has further submitted that life and health of baby girl Rose  Mala would not be safe, if she is allowed to remain in the custody of  the mother.  He further submitted that the mother of the appellant will  be living with him and she will be able to look after the child. 6.      Shri R.K. Jain, learned senior counsel appearing for the  respondent Nos. 1 to 3, controverted the submissions made by the  learned counsel for the appellant and has submitted that Smt. Aruna  Gupta is in perfect health and is not suffering from any mental  ailment.  He has further submitted that the baby girl Rose Mala is  being well looked after.  She is in fine condition and the apprehension  of the appellant that she would not get proper care from her mother  has no basis. 7.      It is well settled that in an application seeking a writ of habeas  corpus for custody of minor child, the principal consideration for the  court is to ascertain whether the custody of the child can be said to be  lawful or illegal and whether the welfare of the child requires that the  present custody should be changed and the child should be left in the  care and custody of someone else.  It is equally well settled that in  case of dispute between the mother and father regarding the custody  of their child, the paramount consideration is welfare of the child and  not the legal right of either of the parties [see Dr. (Mrs.) Veena  Kapoor vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed  Saleemuddin vs. Dr. Rukhsana and others (2001) 5 SCC 247].  It is,  therefore, to be examined what is in the best interest of the child Rose  Mala and whether her welfare would be better looked after if she is  given in the custody of the appellant, who is her father. 8.      The medical reports of Smt. Aruna Gupta regarding her  treatment in some hospitals in U.S.A. are mostly of the year 1984 and  the doctor of Holy Cross Hospital, U.S.A. recorded his assessment as  under: - "Borderline personality disorder with no obvious medical  problems on examination or in the laboratory.

PLAN: No further medical intervention is necessary."

The medical reports of All India Institute of Medical Sciences, which

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are of the year 2000, do not show that she has been suffering from any  such mental ailment, which may be termed as serious.  In fact,  according to the appellant himself Smt. Aruna Gupta is a case of  paranoid schizophrenia and not any kind of serious mental ailment. 9.      It is important to note that the appellant is in the profession of  law being an Advocate-on-Record in the Supreme Court.  A lawyer’s  profession is very exacting and busy profession and requires lot of  time.  The appellant has submitted that his mother will come and stay  with him, who will look after the child.  It is admitted that currently  Smt. Aruna Gupta is living with her parents.  Her father Shri Ram  Gopal Agarwala did his Doctorate in Econometrics from Manchester  University, U.K. in the year 1966 and joined the World Bank in 1971  where he held very senior positions.  He is, therefore, a well-educated  and financially sound person who can look after the needs of his  daughter and also the granddaughter.  The mother of Smt. Aruna  Gupta, namely, Smt. Bimala Agarwala, aged about 60 years, is also  there to look after the child if an occasion arises.  The learned judges  of the High Court before whom Smt. Aruna Gupta appeared along  with Rose Mala and had also talked to her, have recorded that the  child was in good and perfect condition and Smt. Aruna Gupta could  be allowed to retain her custody.  Having given our careful  consideration to the submissions made by the learned counsel for the  parties and to the material placed before us, we do not find any ground  to take a contrary view and disturb the present custody of Rose Mala  and give her in the custody of the appellant. 10.      The appeal, therefore, lacks merit and is dismissed.