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IN THE HIGH COURT OF ALLAHABAD
Dr. Yogendra Kumar Srivastava, J.
Krishnakant Pandey (Corpus) And 2 Others – Petitioner
Vs.
State Of U.P. And 3 Others - Respondent
HABEAS CORPUS WRIT PETITION No. 174 of 2021
Decided On : 18-02-2021
Constitution of India, 1950 – Article 226 – Penal Code, 1860 – Sections 498A, 323, 504, 506, 392 – Code of Criminal Procedure, 1973 – Section 125 – Domestic Violence Act – Section 12 – Dowry Prohibition Act – Section 3/4 – Illegal Custody – Father of petitioner nos. 1 and 2 (minor children of age about 9 and 7 years respectively), has sought to assert that the two children are in illegal custody of Respondent No.4, who is their mother. – Principal grievance which is sought to be raised by the counsel for the petitioners is with regard to the custody of two minor children and a claim for grant of visitation rights. Proceedings under Section 12 of the Domestic Violence Act and Section 125 Cr.P.C. initiated by the Respondent No.4 are also stated to be pending. – An FIR under Sections 498A, 323, 504, 506, 392 IPC and 3/4 of Dowry Prohibition Act is stated to have been lodged by the respondent no. 4 which was registered as Case Crime and the criminal case is said to be pending.
Finding of the court: In a petition for a writ of habeas corpus, the Court would be required to examine, at the threshold, whether the minor is in lawful or unlawful custody of the private respondent named in the petition. – In a case, as the present one, once it is ascertained that the private respondent is none other than the biological mother of the minor children, the custody of the children with their mother cannot, prima facie, be stated to be illegal. – Only in exceptional situation, the custody of the minor children may be directed to be taken away from the mother for being given to any other person, including the father of the children, in exercise of writ jurisdiction. – It may be reiterated that a writ of habeas corpus, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. – Proceedings for restitution of conjugal rights under Section 9 of the Hindu Marriage Act initiated on a petition stated to have been filed by the petitioner no. 3 (husband), being pending, any claim with regard to ancillary reliefs pertaining to custody or visitation rights may be agitated in the said proceedings and the present petition seeking a writ of habeas corpus is not liable to be entertained in the facts of the case.
Result: – Petition Dismissed
JUDGMENT :
Dr. Yogendra Kumar Srivastava, J.
1. Heard Sri Kuldeep Singh, learned counsel for the petitioners and Sri Arvind Kumar, learned AGA for the Staterespondents.
2. By mean of the present petition the petitioner no.3 stating himself to be the father of petitioner nos. 1 and 2 (minor children of age about 9 and 7 years respectively), has sought to assert that the two children are in illegal custody of Respondent No.4, who is their mother.
3. The principal grievance which is sought to be raised by the counsel for the petitioners is with regard to the custody of two minor children and a claim for grant of visitation rights. Proceedings under Section 12 of the Domestic Violence Act and Section 125 Cr.P.C. initiated by the Respondent No.4 are also stated to be pending. An FIR under Sections 498A, 323, 504, 506, 392 IPC and 3/4 of Dowry Prohibition Act is stated to have been lodged by the respondent no. 4 which was registered as Case Crime No. 399 of 2013 and the criminal case is said to be pending.
4. As per the pleadings in the petition the Respondent No.4 (wife) left her matrimonial home on 15.07.2013 on account of a matrimonial discord and a petition under Section 9 of the Hindu Marriage Act registered as Case No. 164 of 2013 (Manoj Kumar Pandey vs. Priya Pandey) was filed before the Family Court which is stated to be pending.
5. It is sought to be contended that some efforts for reconciliation between the parties were made sometime in the year 2019. However, the fact remains undisputed that the Respondent No.4 (wife) has not returned to her matrimonial home and that she is living separately with her minor children.
6. Learned AGA appearing for the Staterespondents submits that in view of admitted fact that respondent no.4 left her matrimonial home way back in the year 2013 along with her minor children and is living separately it cannot be said that the minor children are any kind of illegal custody. He further pointed out that a petition for restitution of conjugal rights has been filed by the petitioner no.3 (husband) which is pending and also cases under the Domestic Violence Act, Section 125 Cr.P.C. and also a criminal case registered pursuant to an FIR lodged by the Respondent No.4 (wife) are also pending.
7. In a petition seeking a writ of habeas corpus in a matter relating to a claim for custody of a child, the principal issue which is to be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal.
8. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain vs. State of U.P. and others, AIR 1964 SC 1625 and Kanu Sanyal vs. District Magistrate Darjeeling, (1973) 2 SCC 674.
9. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
10. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan v State (NCT of Delhi) and another, (2017) 8 SCC 454 and it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.
11. Taking a similar view in the case of Sayed Saleemuddin vs. Dr. Rukhsana and others, (2001) 5 SCC 247 it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal conside
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