Back
IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
Ujaif @ Noor Alam And 2 Others - Petitioner
Vs.
State Of U.P. And 3 Others - Respondent
HABEAS CORPUS WRIT PETITION No.499 of 2020
Decided On : 12-2-2021
Constitution of India, 1950 – Article 226 – Mulla Principles of Mahomedan Law1 – Sections 352, 353, 351, 349 – Illegal Detention – Respondents to produce the petitioner no.1 and 2 before this Hon'ble court and save the right of personal liberty of the corpus from the illegal detention of respondent no.4. – To Issue a writ, order in the nature of mandamus directing the respondents to give the custody of petitioner no.1 and 2 to the petitioner as he has the father and natural guardian of petitioner no.3.
Finding of the court: Petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective – It is therefore seen that in an application seeking a writ of habeas corpus for custody of a minor child, as is the case herein, the 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. – 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. – It is a case of illegal custody and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable. – It is always open to the parties to avail the appropriate remedy for the purpose before the proper forum. – Observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties which may be agitated in appropriate proceedings.
Result: – Petition Dismissed
JUDGMENT :
Yogendra Kumar Srivastava, J.
1. Heard Sri Brijesh Kumar Mishra, learned counsel for the petitioners, Sri Vinod Kant, learned Additional Advocate General alongwith Sri Arvind Kumar, learned Additional Government Advocate appearing for the State – respondents and Sri Lihazur Rahman Khan appearing alongwith Sri Araf Khan, learned counsel for the respondent no.4.
2. The present petition for a writ of habeas corpus has been filed with the following prayers:
2. Issue a writ, order in the nature of mandamus directing the respondents to give the custody of petitioner no.1 and 2 to the petitioner as he has the father and natural guardian of petitioner no.3."
3. The petitioner no.3 claims to be the father and natural guardian of the petitioner nos.1 and 2 (aged about six years and two years respectively). It is contended that the wife of the petitioner no.3 expired on 27.05.2020 and thereafter, the petitioner nos.1 and 2 were taken away by the respondent no.4 (father of the deceased wife). Counsel for the petitioners contends that the custody of the petitioner nos.1 and 2 with the respondent no.4 is illegal and that the custody of the aforesaid petitioner nos.1 and 2 be handed over to the petitioner no.3.
4. Sri Lihazur Rahman Khan, learned counsel appearing for the respondent no.4, has placed reliance upon the counter affidavit and submits that the petitioner no.3 himself had entrusted custody of the petitioner nos.1 and 2 to the respondent no.4 (maternal grandfather of the minor children) and their maternal grandmother. Reliance in this regard has also been placed on a notarial affidavit of the petitioner no.3 himself, to support the contention that the custody of the petitioner nos.1 and 2 was handed over by him on his own volition to the maternal grandparents of the minor children.
5. Further reliance has been placed on the principles enunciated in Sections 352 and 353 of Mulla Principles of Mahomedan Law1 to contend that in case of a male child below the age of seven years and a female child who has not yet attained puberty, the mother is entitled to the custody (hizanat) and that failing the mother, the custody belongs to the mother's mother.
6. Counsel for the petitioners has not disputed the fact with regard to the affidavit having been executed by the petitioner no.3, in terms of which the custody of the petitioner nos.1 and 2 was handed over by the petitioner no.3 to the respondent no.4 and the maternal grandmother. He has, however, sought to contend that being the father, he would be the natural guardian of the minor children and would be entitled to their custody.
7. Learned Additional Advocate General appearing for the State – respondents submits that once the petitioner no.3 does not dispute the fact that the custody of the petitioner nos.1 and 2 (minor children) was handed over to their maternal 1 Mulla Principles of Mahomedan Law (22nd Edition) grandparents by the petitioner no.3 himself, it would not be a case of illegal custody and the present petition seeking a writ of habeas corpus would not be entertainable.
8. Rival contentions now fall for consideration.
9. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890 (the GWA) and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed under the aforesaid enactment.
10. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.
11. Section 17 of the GWA relat
Point of law: Illegal detention – Custody of child - In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may di....
The court established that custody of a minor, following the death of a parent, must be assessed under the Guardians and Wards Act and relevant personal law, with the welfare of the child as the para....
The court affirmed the natural guardianship rights of the father and the mother's right to custody of a minor until the age of seven, deeming the minor's detention unlawful.
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 the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
The court established that under the Guardians and Wards Act and personal law, a biological mother has a right to custody of her minor child, and any illegal detention by a non-guardian is subject to....
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
Court emphasizes the welfare of the child in custody matters while maintaining jurisdictional limits.
The welfare of the child is paramount in custody matters, and the extraordinary jurisdiction for habeas corpus depends on establishing unlawful detention.
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
