Following this, the mother filed an FIR against the father and also approached the Allahabad High Court by filing a habeas corpus petition seeking custody of the minor child.

A Single Judge of the High Court directed that the child’s custody be handed over to the mother, while granting visitation rights to the father.

Later, alleging that the mother was blocking his visitation rights, the father filed another habeas corpus petition. However, the court dismissed it, noting that an application was already pending in the earlier petition, and therefore the matter was still under consideration. The court held that a second habeas corpus petition was not maintainable

The father later filed a contempt petition against the mother, alleging non-compliance with the court’s order. During the proceedings, the mother assured the court that she would follow the directions, after which the contempt petition was dismissed, especially since both parties had already filed special appeals.

In the meantime, both parents moved several applications, leading the court to modify the father’s visitation rights on more than one occasion. These modifications were challenged by both sides through intra-court appeals.

Despite repeated attempts by the court to reconcile the parents in the interest of the child, the efforts did not succeed. As an interim arrangement, the court directed that both parents could meet the child together and must maintain civility in the child’s presence.

“The warring couple has made allegations and counter allegations against each other, which are basically, factual in nature and can be best appreciated after the parties are permitted to lead evidence. However, the dilemma before this Court is how to secure the best interest of the child amidst the marital conflict,” noted the Court.

The court observed that the key issue was whether custody should be granted to the father or if the child should be sent to a boarding school.

It noted that the child had lived with the mother for most of his life and was performing well academically at one of Lucknow’s top schools. The court added that if the parents had been living together and constantly in conflict, sending the child to a boarding school might have been considered. However, since the child was thriving and showed no signs of distress while living with the mother, such a step was not warranted.

“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 especially when the child is accustomed to a life style, is going to school and has friends and is cocooned in his own ecosystem, which is comfortable for him.”

The court also noted that a petition filed by the father under the Guardians and Wards Act, 1890 was still pending before the Trial Court. In view of this, it refrained from changing the child’s custody from the mother to the father.

Regarding the proposal to send the child to a boarding school, the court observed that there was no expert report on record to show whether the child could emotionally handle being separated from the mother. The court held that this issue could be considered by the Family Court if expert reports are submitted.

The court further noted that the original visitation order was already sufficient and detailed. It expressed the hope that both parents would prioritize the child’s best interests and follow the court’s directions.

Case Title: Dr. Dinesh Kumar Agarwal and others v. State of U.P. through Principal Secretary (Home), Govt. of U.P., Lucknow and others