Back
IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Sahil (Minor) And Another - Appellant
Versus
State Of U.P. And 3 Others - Respondents
Habeas Corpus Writ Petition No.387 of 2020
Decided on : 03-09-2020
Guardians and Wards Act, 1890 – Section 25 – Registration of Births and Deaths Act, 1989 – Custody of Minor Son – Habeas Corpus – Habeas Corpus Writ Petition has been effectively filed by the second petitioner, Rehana Bano, asking that the first petitioner, Sahil, her minor son, aged a little less than four years, be ordered to be produced before the Court from the unlawful custody of respondent no.4, Abdul Sohrab, the minor’s grandfather and liberated from the said custody, ordering him to be placed in his mother’s custody.
Finding of the court:
Second petitioner, Rehana Bano on the other hand stated before the Court in person, which the Court permitted despite presence of learned Counsel representing her, that she is a Postgraduate and undertakes private tuition. She is able to earn reasonably well, besides receiving generous support from her family, with whom she stays after her husband’s death. – This Court is mindful of the fact that quite apart from what the personal law of parties says about her right to custody until the age of seven years as regards a minor male child, the welfare of the minor is certainly more secure in the mother’s hand. – It is far more secure than in the hands of an aging grandfather, who has married a second time and introduced a step grandmother for the minor in his family. – The welfare of the minor, it is well acknowledged, is not secured by money alone. – It is the product of multifaceted grooming that involves affection, supervision, guidance, education, inculcation of good human values and many other factors of like genre, that go to achieve realization of the human personality. – In this case, this Court is of clear opinion that the minor’s welfare under the circumstances noticed above is far better secured with the mother than in the hands of the grandfather, respondent no.4.
Result: – Habeas Corpus Allowed.
JUDGMENT :
1. This Habeas Corpus Writ Petition has been effectively filed by the second petitioner, Rehana Bano, asking that the first petitioner, Sahil, her minor son, aged a little less than four years, be ordered to be produced before the Court from the unlawful custody of respondent no.4, Abdul Sohrab, the minor’s grandfather and liberated from the said custody, ordering him to be placed in his mother’s custody.
2. Heard Sri Ashutosh Kumar Pandey, learned Counsel for the petitioners and Sri Indrajeet Singh, learned A.G.A. appearing on behalf of the State.
3. Respondent no.4, Abdul Sohrab appeared in person, but did not file a counter affidavit. He produced the minor, Sahil in compliance with the rule nisi issued by this Court.
4. The case of the second petitioners is that she was married according to Muslim rites on 15.05.2013 to the late Amjad Khan son of Sohrab Khan, respondent no.4. After solemnization of marriage, she cohabited with her husband, discharging her conjugal obligations. It is asserted that on 28.10.2016, the minor detenue, Sahil was born of the wedlock of parties. The second petitioner’s deceased husband, Amjad Khan got the name of their newly born son registered with the competent Authority, under the Registration of Births and Deaths Act, 1989 on 28.10.2016. The certificate of birth was issued on 13.12.2016. That certificate is on record as Annexure no.1 to this petition.
5. It is averred by the second petitioner that by ill-fate, she lost her husband, Amjad Khan on 08.02.2017. Once widowed, she faced a barrage of physical and mental harassment, besides torture at the hands of her in-laws, including respondent no.4. It is averred in paragraph no.6 that respondent no.4 would not be content with ill-treating his daughter-in-law, the second petitioner; he would beat up the first petitioner, the second petitioner’s minor son. It is the second petitioner’s case that on 05.09.2019 at about 7 O’ clock in the morning, she was thrown out from her matrimonial home by the fourth respondent, acting in concert with the other in-laws, who beat her up and relieved her of her jewelry and other personal belongings. To add to it, the fourth respondent and other in-laws forcibly snatched away her minor son, Sahil. It is averred that the minor is a young child, less than three years and stands deprived of the second petitioner’s maternal love, affection, company and security.
6. It is by now a well reputed and an unexceptionable principle of law that in child custody matters, welfare of the minor is of paramount consideration. But, before the Court could look into those considerations, Sri Indrajeet Singh, learned A.G.A. has raised a preliminary objection that a writ of habeas corpus cannot be invoked to decide virtually custody disputes about minors, between family members. He submits that the fourth respondent is the minor’s grandfather, whereas the second petitioner is his mother. If the mother feels that she is entitled to the minor’s custody, she ought to go to the Court of competent jurisdiction under the Guardians and Wards Act, 1890. In fact, according to the learned A.G.A., Section 25 of the Guardians and Wards Act is the ideal remedy for a natural guardian to secure custody of a minor from another natural guardian, vis-a-vis whom the claiming guardian may feel that he/she has a better right to the minor’s custody. A writ of habeas corpus, according to Sri Indrajeet Singh, is not at all available to resolve custody disputes regarding minors.
7. This question fell for consideration of the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. After review of earlier authority of their Lordships of the Supreme Court, it was held:
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
