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IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
Rachhit Pandey (Minor) And Another - Petitioner
Vs.
State Of U.P. And 3 Others - Respondent
HABEAS CORPUS WRIT PETITION No. 193 of 2020
Decided On : 11-1-2021
Guardians and Wards Act, 1890 – Hindu Minority and Guardianship Act, 1956 – Sections 2, 6, 9, 12, 13, 26 – Custody of child – Right to visit/meet – Respondents to produce the corpus before this Hon'ble Court and the petitioner no.1 be allowed to remain in the company of the petitioner no.2. – To issue a writ, order or direction commanding the respondents to resolve the matrimonial dispute, if any, by amicable dialogue, mediation or court expeditiously and the visiting rights be granted to the petitioner no.2 as he is being denied access to meet his child. – To issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
Finding of the court: Principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is. – It is well settled that in matters of custody the welfare of child would be of a paramount consideration and the role of the court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction. – Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. – Prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. – Power of the High Court, in granting a writ, in child custody matters, would be qualified only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody. – In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate court. – Respondent no.4 alongwith her minor son who was an infant of about four months (at that relevant point of time i.e. in October, 2016), is stated to have left her matrimonial home and since then the minor is said to be in the custody of his mother. – Two parents are admittedly living separately since the time that the respondent no.4 is stated to have left her matrimonial home, and matrimonial disputes are pending between the parties, in the form of an application filed by the petitioner no.2 seeking restitution of conjugal rights under Section 9 of the HMA and the respondent no.4 (wife) seeking a divorce by filing a petition under Section 13 of the HMA. –
Result: Writ Petition Dismissed
JUDGMENT :
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Dharm Pal Yadav, learned counsel for the petitioners, Sri Vinod Kant, learned Additional Advocate General alongwith Sri Sanjay Sharma, learned Additional Government Advocate appearing for the State respondents and Sri Satyendra Singh, learned counsel for the respondent no.4.
2. The present petition has been filed for a writ of habeas corpus praying for the following reliefs:
(ii) issue a writ, order or direction commanding the respondents to resolve the matrimonial dispute, if any, by amicable dialogue, mediation or court expeditiously and the visiting rights be granted to the petitioner no.2 as he is being denied access to meet his child.
(iii) issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iv) award cost of the petition to the petitioners."
3. The order sheet of the case indicates that at the very outset when the case was taken up on 27.02.2020, learned counsel for the petitioners submitted that the petitioner no.2 did not want the custody of the corpus i.e. the petitioner no.1 and that he was pressing the petition only for visitation rights. The aforementioned contention as noticed in the order dated 27.02.2020 is as follows:
4. The order sheet further indicates that the only dispute which is being agitated in the present case is with regard to the claim set up by the petitioner no.2 for visitation rights.
5. As per the case set up in the petition, the petitioner no.2 claims to have married the respondent no.4 on 24.02.2014 and thereafter a male child i.e. the petitioner no.1 was born on 17.06.2016. Soon thereafter, sometime in October, 2016 the respondent no.4 (wife) is stated to have deserted the petitioner no.2 and went to her parental home. Since then she is stated to have never returned to her matrimonial home.
6. It is contended that the petitioner no.2 and the respondent no.4 are living separately since October, 2016 and that the petitioner no.1 i.e. the minor son is in the custody of his mother i.e. respondent no.4. An application, under Section 9 of the Hindu Marriage Act, 19551, seeking restitution of conjugal rights is stated to have been filed by the petitioner no.2 (husband) on 13.03.2019 and the same is said to be pending before the Principal Judge, Family Court, Kanpur Nagar. The petitioner no.2 by means of the present petition has sought to raise a claim with regard to custody of the minor son and also visitation rights.
7. The respondent no.4, wife, has filed her personal affidavit dated 16.12.2020 wherein it is averred that she has filed a divorce suit under Section 13 of the HMA before the Principal Judge, Family Court, Azamgarh being Divorce Suit No.874 of 2020 (Kavita v Rohan Pandey), which is pending and the next date fixed in the case is 08.02.2021. It is also submitted that the petitioner no.1, minor son, is living with his mother i.e. respondent no.4 who is his lawful guardian and that the minor son cannot be said to be in any kind of illegal custody or detention and, accordingly, the present habeas corpus petition is not maintainable and is liable to be dismissed.
8. Parties have exchanged pleadings. With the consent of parties the petition is taken up for disposal.
9. Learned Additional Advocate General appearing for the Staterespondents submits that the facts of the present case show that the petitioner no.2 and the respondent no.4 admittedly are living separ
Point of law: Custody of child – Unlawful and illegal custody - A writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly ....
The court ruled that visitation rights cannot be claimed through habeas corpus when custody is lawful and family court proceedings are ongoing.
Point of law: Custody of child - In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is ill....
Court emphasizes the welfare of the child in custody matters while maintaining jurisdictional limits.
Point of Law : It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
The welfare of the child is paramount in custody matters, and the extraordinary jurisdiction for habeas corpus depends on establishing unlawful detention.
Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it ....
The welfare of the child is the paramount consideration in determining custody, and the writ of habeas corpus is maintainable in child custody matters where the detention of a minor child by a parent....
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