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IN THE HIGH COURT OF ALLAHABAD
SHAMIM AHMED, J.
Malav Dwivedi Thru. His Mother Smt. Sudha Dwivedi – Appellant
Versus
State Of U.P. And Others - Respondents
Habeas Corpus Writ Petition No.330 of 2022
Decided on : 08-02-2024
Habeas Corpus - Child Custody Dispute - N/A - The court discussed various legal provisions including the principles of habeas corpus, the welfare of the child, and the paramount consideration of the child's best interest. The court emphasized that the custody of the child should be determined based on what would best serve the interest and welfare of the child, and not solely on the legal rights or economic circumstances of the parties involved.
Fact of the Case:
The petitioner sought custody of her child, alleging illegal detention by the respondent. The respondent claimed that the petitioner was irresponsible and suffered from a mental disorder. Both parties filed affidavits and counter-affidavits presenting conflicting allegations.
Finding of the Court:
The court found that the child should not be deprived of the love and affection of both parents, emphasizing the impact of deprivation on the child's well-being. It considered the welfare of the child as the predominant criterion in determining custody.
Issues: The main issue revolved around the custody of the child and the allegations of illegal detention by the respondent. The court also addressed the conflicting claims and allegations presented by both parties.
Ratio Decidendi: The court's decision was based on the principles of habeas corpus, the welfare of the child, and the paramount consideration of the child's best interest. It emphasized that the custody of the child should be determined based on what would best serve the interest and welfare of the child.
Final Decision: The court ruled that the child should remain in the custody of the father, with provisions for the mother to meet the child on specified dates and communicate via phone. The mother was also permitted to approach the appropriate forum for claiming custody of the child under relevant laws.
JUDGMENT :
1. Heard Shri Shobh Nath Pandey, learned Counsel for the petitioner, Dr. Manoj Kumar Dubey, learned Counsel for respondent Nos.4 to 8 and Shri Ashok Kumar Singh, learned A.G.A-I for the State-respondent Nos.1 to 3.
2. The petitioner-Smt. Sudha Dwivedi has filed this Habeas Corpus petition seeking following reliefs:-
ii) issue a writ, order or direction in the nature of Habeas Corpus commanding and directing the opposite parties to get released the detenue Malav Dwivedi from the illegal detention of opposite party No.4 to 8 forthwith, and after recording his statement set him free at his liberty, forthwith.
iii) issue any other suitable order or direction which this Hon’ble Court may deem just, fit and proper under the facts and circumstances of the case.
iv) Allow the writ petition with cost.”
3. The Coordinate Bench of this Court on 14.10.2022 had passed the following order:
He further submits that respondent no. 8 is living in Surat (Gujarat) and the Vakalatnama on her behalf shall also been filed very soon.
It is further submitted by him that two weeks' time be granted for the purpose of filing counter affidavit in response to the petition filed by the petitioner.
Having regard to the request made by learned counsel for the respondents no. 4 to 7 two weeks' further time is granted for the purpose of filing counter affidavit.
Accordingly list on 3.11.2022.
It is further provided that respondent no.4, namely, Shwetang Dwivedi shall bring the corpus/detenue, namely, Master Malav Dwivedi with him to the Mediation Centre of this Court on 18.10.2022 at 11.A.M. in the Mediation Centre of this Bench and the Incharge Mediation Centre of this Bench shall provide a space to the next friend/mother of the corpus, namely, Smt. Sudha Dwivedi to interact with the corpus/detenue Master Malav Dwivedi for about one hour. It is also provided that during the meeting with the detenue the Incharge Mediation Centre shall permit the mother of the corpus Smt. Sudha Dwivedi to offer some gifts or eatable items to the corpus and no objection in this regard shall be raised by opposite party no.4.
A copy of this order be immediately provided to the Incharge Mediation Centre of this Bench.
This Court hope and trust that the order pertaining to he meeting of the corpus with his mother, namely, Sudha Dwivedi on 18.10.2022 at 11.00 A.M. in the mediation centre of this Court shall be complied in letter and spirit by the opposite party no.4.”
4. On 03.08.2023 the Coordinate Bench of this Court had passed the following order:
2. Rebutting this submission, learned counsel for the petitioner has relied on judgment of Supreme Court in Yashita Sahu versus State of Rajasthan and others passed in Crl. Appeal No.127 of 2020 (Special Leave Petition(Crl) No.7390 of 2019) (Emphasis is on para 9) wherein similar objection was rejected by the Supreme Court and the appeal was entertained.
3. In view of the above, the objection raised by respondent No.4 is rejected.
4. Both the deponent and respondent No.4 have levelled allegation against each other that both are unemployed and have no source of livelihood. The court in a habeas corpus petition is to ensure overall welfare of the child. Neither the deponent nor the respondent No.4 has disclosed his/her source of income while filing affidavit(s) to show that they have at least minimum
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