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IN THE HIGH COURT OF ALLAHABAD
KARUNESH SINGH PAWAR, J.
Takbeer Khan (Minor)Thru. His Mother Rehana – Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home Lucknow And Others – Respondents
Habeas Corpus Writ Petition No.256 of 2022
Decided on : 12-12-2023
HABEAS CORPUS - Child Custody - Sections 363, 366, 376 IPC, Section 3/4 POCSO Act - The court considered the character of the proposed guardian, the mother's entitlement to custody under Mohammedan Law, and the welfare of the child in deciding the custody of the detenue. The court issued a writ of habeas corpus directing the father to hand over the custody of the detenue to the mother.
Fact of the Case:
The mother filed a petition seeking the recovery and custody of her 3-year-old son from the father, who was facing rape charges and had an illicit relationship with another woman.
Finding of the Court:
The court found that the father's character and the welfare of the child were crucial in deciding the custody. It held that the mother was entitled to custody under Mohammedan Law and issued a writ of habeas corpus directing the father to hand over the custody of the detenue to the mother.
Issues: Custody of the child, character of the proposed guardian, welfare of the child
Ratio Decidendi: The character of the proposed guardian and the welfare of the child are crucial in deciding child custody. The mother's entitlement to custody under Mohammedan Law was also considered.
Final Decision: The court issued a writ of habeas corpus directing the father to hand over the custody of the detenue to the mother.
JUDGMENT :
1. Case called out in the revised list.
2. Learned counsel for the petitioner and learned A.G.A. for the State-respondent is present however, none appears on behalf of respondent No.4.
3. Since the respondent No.4 did not appear on the last date i.e. 22.11.2023 therefore, stop order was passed by the court that in case no one appears for respondent No.4, the matter may be decided finally hence this Court proceeds to decide the matter finally.
4. This petition has been filed by the mother of the detenue-Takbeer Khan, aged about 3 years and 7 months now, praying for a direction for respondent Nos.2 and 3 to recover and produce the detenue before this Court after liberating him from the custody of opposite party No.4.
5. This Court vide interim order dated 15.09.2022 granted visiting rights to the deponent. It is submitted on behalf of the petitioner that neither the opposite party No.4 is represented before this Court nor the visiting rights granted to the deponent vide interim order dated 15.09.2022 are being properly complied with. At times they are complied and at times they are not complied.
6. Learned counsel for the petitioner submits that detenue is presently in the custody of opposite party No.4-Intiyaj Khan, husband of the deponent. Both deponent and opposite party No.4 have married on 09.05.2017. It is submitted that after the marriage, the respondent No.4 used to beat Rehana (mother of the detenue) under influence of alcohol. Out of their wedlock, their son Takbeer Khan (detenue) was born on 03.03.2020. Due to atrocities committed by respondent No.4, the deponent returned to her parental home along with her son in the year 2021. After some time, she again went to her matrimonial home and started living with her husband (opposite party No.4) however, the conduct of opposite party No.4 did not change. In the meantime, a case under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act was registered as Case Crime No.1337 of 2017 at P.S. Thakurganj, District Lucknow in which opposite party No.4 was charge-sheeted and remained in jail for almost a year and ultimately was released on bail on 18.01.2019. After being released, opposite party No.4 again involved in extra marital affairs with another woman which was objected by the deponent-Rehana and she informed the same to her parents. After which, opposite party No.4 on 15.06.2022 compelled her to leave her matrimonial house however, forcefully detained the detenue-Takbeer Khan from the custody of Rehana since then she is making all efforts to bring back her son Takbeer Khan. The deponent also went to Police Station-Para, District-Lucknow on 20.07.2022 and gave application which is on record as Annexure-3 to the petition.
7. It is submitted on behalf of the petitioner that the detenue-Takbeer Khan has been illegally detained by opposite party No.4 who is a drunkered and an accused in a rape case and has already been in custody over a period of one year and thus, considering the overall interest of the detenue, it will not be safe to leave the detenue in the custody of such person who is facing rape charges and is alcoholic.
8. Learned A.G.A. has submitted that a perusal of annexure 2 of the petition shows that father of the detenue namely, Intiyaj Khan is facing rape charges in Case Crime No.1337 of 2017, under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act, P.S. Thakurganj, District Lucknow.
9. Perused the record.
10. It is not disputed that detenue while filing the petition was 2 years old and presently around 3 years and 7 months old. It is also not disputed between the parties that opposite party No.4 is facing rape charges. Specific averments regarding the Case Crime No.1337/2017, under Sections 363, 366, 376 IPC read with Section 3/4 POCSO Act have been levelled in para 9 of the petition which have not been denied by respondent No.4 while filing the counter affidavit rather it has been stated that opposite party No.4 has been falsely roped due to ult
The character of the proposed guardian and the welfare of the child are crucial in deciding child custody.
The main legal point established in the judgment is the entitlement of the natural guardian, particularly the father, to claim custody of the child. The court emphasized that the detention of a minor....
The welfare of the child is the paramount consideration in determining the custody, and the child's preference and the bond with the parents are essential for the child's overall development.
The welfare of the child is the paramount consideration in custody disputes, and custody can be refused if it does not promote the child's welfare.
Custody of a child under five years is presumed to be with the mother, and this presumption is rebuttable only by demonstrating the mother's unsuitability.
The relevance of the character of the proposed guardian and the pendency of a criminal case in determining custody, prioritizing the welfare of the child.
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