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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Sushil Kumar Tiwari And 4 Others - Appellant
Versus
State Of U.P. And 5 Others - Respondents
Habeas Corpus Writ Petition No. 632 of 2021
Decided on : 06-12-2021
Constitution of India, 1950 - Article 226 - Hindu Marriage Act, 1955 - Section 26 - Hindu Minority and Guardianship Act, 1956 - Guardians and Wards Act, 1890 - Maintainability of a habeas corpus petition - Custody of children and declares that in any proceeding, Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible - Petitioner has filed present habeas corpus petition alleging that corpus is under illegal custody of his mother-respondent - Whether custody of child can be said to be unlawful or illegal - Whether minor is in lawful or unlawful custody of another person - Whether minor ordinarily resides within the area on which court exercises such jurisdiction.
Findings of the court :
In a child custody matter, a writ of habeas corpus would be entertainable where it is established that detention of minor child by parent or others is illegal and without authority of law - In a writ court, where rights are determined on basis of affidavits, in a case where court is of a view that a detailed enquiry would be required, it may decline to exercise extraordinary jurisdiction and direct parties to approach appropriate forum - Remedy ordinarily in such matters would lie under Hindu Minority and Guardianship Act, 1956[HMGA] or Guardians and Wards Act, 1890[GWA], as case may be - Court is not inclined to exercise its extraordinary jurisdiction to entertain the present petition seeking a writ of habeas corpus.
Result : Petition stands dismissed
JUDGMENT :
1. Heard Sri Maqsood Ahmad Beg, learned counsel for the petitioners and Sri Vinod Kant, learned Additional Advocate General assisted by Sri Arvind Kumar, learned Additional Government Advocate appearing for the State respondents.
2. The petitioner no.1 asserting himself to be the father of the petitioner no. 2-corpus, has filed the present habeas corpus petition alleging that the corpus is under illegal custody of his mother-respondent no.4.
3. Pleadings in the petition are to the effect that the marriage of petitioner no. 1 was solemnized with respondent no. 4 on 09.06.2010 and the petitioner no. 2 was born on 23.08.2015 and that the petitioner no. 1 and the respondent no. 4 are living separately for the past several years. It is averred that the petitioner no. 1 has filed a divorce petition and the respondent no. 4 has also instituted certain legal proceedings against the petitioner no. 1. An application stated to have been filed before the local police authorities some time in the year 2020, has been appended along with the petition wherein it is stated that the petitioner-corpus (stated to be of age about five years at that point of time) had been taken away by his mother-respondent no. 4, about three years earlier. Based on the aforestated facts, the present petition seeking a writ of habeas corpus has been filed.
4. Sri Vinod Kant, learned Additional Advocate General appearing along with Sri Arvind Kumar, learned Additional Government Advocate for the State respondents, submits that instructions have been received to the effect that criminal proceedings, pursuant to a complaint case instituted by the respondent no. 4, are pending, which fact has not clearly been placed on record. It is further submitted that as per the admitted facts, the petitioner no.2-corpus being in the custody of his biological mother since the time when he was an infant of about two years of age, the same cannot be held to amount to illegal detention, and accordingly the present petition seeking a writ of habeas corpus would not be entertainable. Reliance has been placed upon recent decisions of this Court in Rachhit Pandey (Minor) And Another vs. State of U.P. and 3 others, 2021 (2) ADJ 320, Master Manan @ Arush vs. State of U.P. and 8 others, 2021 (5) ADJ 317, Krishnakant Pandey (Corpus) And 2 Others vs. State of U.P. And 3 Others, 2021 2 AWC 1053 ALL, Master Tarun @ Akchhat Kumar And Another vs. State of U.P. And 3 Others, 2021 (6) ADJ 23, Priyanshu (Minor) vs. State of U.P. And 5 Others, 2021 (7) ADJ 438, Vahin Saxena (Minor Corpus) and another Vs. State of U.P. and others, 2021 SCC OnLine All 593 and Reshu @ Nitya and others Vs. State of U.P. and others, Habeas Corpus Writ Petition No. 9 of 2020, decided on 22.10.2021.
5. In order to appreciate the rival contentions, the ambit and scope of exercise of powers for grant of a writ of habeas corpus in such matters would be required to be adverted to.
6. 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.
7. 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 Sayed Saleemuddin vs. Dr. Rukhsana and others, (2001) 5 SCC 247, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:-
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.
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.
The welfare of the child is paramount in custody matters, and the extraordinary jurisdiction for habeas corpus depends on establishing unlawful detention.
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.
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....
Custody of minor children - Natural guardian - Private respondent is none other than biological mother of minor children - It may be presumed that custody of children with their mother is not unlawfu....
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