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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Master Mahib Sajjad Masood And Another – Appellant
Versus
State Of U.P. And Others – Respondents
Habeas Corpus Writ Petition No.880 of 2023
Decided on : 29-01-2024
HABEAS CORPUS - Child Custody - Guardians and Wards Act, 1890, Principles of Mahomedan Law - GWA, Section 12, 17, 352, 353 - The court discussed the provisions of the Guardians and Wards Act, 1890 and the Principles of Mahomedan Law, particularly focusing on the entitlement of guardianship, appointment of guardians, and the right of mother to custody of infant children. The court emphasized the paramount consideration of the welfare of the child in determining custody and highlighted that the writ of habeas corpus is an extraordinary remedy granted only when the custody of the child is unlawful and illegal.
Fact of the Case:
The case involved a habeas corpus petition seeking the production and custody of a minor child by the father. The mother had custody of the child and both parents expressed their unwillingness to take back each other.
Finding of the Court:
The court found that the custody of the child with the mother was not illegal and dismissed the habeas corpus petition. It emphasized that the welfare of the child is of paramount consideration in such matters.
Issues: The issues involved the entitlement of guardianship, custody rights of parents, and the legality of the child's custody.
Ratio Decidendi: The court held that the custody of the child must be proven to be unlawful and illegal for a habeas corpus petition to be entertained. It also highlighted the importance of the welfare of the child in determining custody.
Final Decision: The habeas corpus petition was dismissed, and the child was allowed to go along with the mother.
JUDGMENT :
1. Heard Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-respondents and Sri R.P. Rajan, learned counsel for the respondent Nos. 8, 9, 10 and 11.
2. The present habeas corpus petition has been filed primarily seeking the following relief:-
3. Pursuant to the rule nisi issued earlier, the petitioner No. 1 (corpus), minor child of age about seven years, has been produced in Court by respondent No. 8, his mother.
4. Respondent No. 8 is present in Court and has been identified by her counsel, Sri R. P. Rajan.
5. The petitioner No. 2, Sajjad Hasan Masood, father of the petitioner no.1 (corpus), is also present in Court, and has been identified by his counsel, Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra.
6. Learned counsel appearing for the respondent No. 8 has stated that the amount as directed by the Court vide its order dated 21.12.2023 has been received by the said respondent.
7. Counsel for the parties do not dispute the fact that looking to the age of the child, it would be difficult to ascertain his wishes and accordingly the question with regard to his guardianship and custody would be required to be considered taking into view the entirety of the facts and circumstances of the case.
8. Learned A.G.A.-I, on the basis of an inquiry from the respondent No. 8, mother of the petitioner No. 1 (corpus), in Court, submits that she has stated that she is presently living at her maternal home. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 03.06.2023, and thereafter she has not been taken back. She has also stated that she is not averse to going back her matrimonial home, but her husband is not willing to take her back. As regards her minor son, she has stated that the child is going to school and is in good health.
9. Learned A.G.A.-I has also made an inquiry from the petitioner No. 2, in Court, and submits that he has stated himself to be in a government job. On a pointed query, he has expressed his unwillingness to take back the wife stating that there is already a talaq between them.
10. As per the pleadings in the petition, the respondent No. 8 (mother) is stated to have left her matrimonial home, on 02.06.2023, with all her certificates, jewellery and cash, alongwith her minor son, petitioner no.1 (corpus).
11. There is no material to suggest that the petitioner No. 1 (corpus) was forcibly taken away by the respondent No. 8. On the contrary, there is a clear assertion by respondent No. 8 that she was sent alongwith her minor son by the petitioner No. 2 to her maternal home and thereafter she has not been taken back.
12. The petitioner No. 2 (father of the corpus), has categorically stated that he is unwilling to take back the respondent No. 8 (mother of the corpus).
13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890[GWA], and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.
14. 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.
15. Section 17 of the GWA relates to matter to be
The welfare of the child is of paramount consideration in determining custody, and a habeas corpus petition is entertained only when the custody of the child is proven to be unlawful and illegal.
The welfare of the child is paramount in custody matters, and a writ of habeas corpus is not to be granted unless there is evidence of unlawful detention.
The welfare of the child is paramount in custody matters, and habeas corpus may not be utilized to examine the legality of custody.
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....
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 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....
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 : 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 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: 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....
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