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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Master Hiras and anr. - Petitioners
Versus
State of U.P. and 5 ors. - Respondents
HABEAS CORPUS WRIT PETITION NO. 949 OF 2023.
Decided On : 16-04-2024
JUDGMENT
Dr. Yogendra Kumar Srivastava, J.
Heard Sri. Mohd Nasir, learned counsel for the petitioners and Ms. Divya Ojha, learned AGA-I appearing for the State- respondents.
2. The petition has been filed with the assertion that the petitioner no. 1 (corpus), who is the minor son of the petitioner no. 2, born on 01.01.2022, had been illegally detained by the respondent no. 4 (wife of the brother of the petitioner no. 2), who is stated to be having strained relationship with the husband.
3. Pursuant to the rule nisi issued earlier, the petitioner no. 1 (corpus) was produced in Court, on 12.03.2024, by respondent no. 4.
4. It was brought to the notice of the Court that the respondent no. 4 (wife of brother of the petitioner no. 2), was at an earlier point of time, living with the joint family, and on 27.11.2022, the respondent no. 4 is stated to have left her home taking the petitioner no. 1 (corpus) with her.
5. It was pointed out that the respondent no. 4, since then, was staying at her maternal home, and the petitioner no. 1 (corpus) was being illegally detained by her.
6. It was contended that the petitioner no. 1 (corpus), being an infant of age about 2 years, the father would be the natural guardian, and the biological mother would be entitled to a right of custody (hizanat), as per the personal law.
7. It was also pointed out that the mother of the petitioner no. 1 (corpus) and the respondent no. 4, were 'related to each other' and that proceedings of criminal nature as well as a matrimonial case, are pending, between the respondent no. 4 and her husband (i.e. the brother of the petitioner no. 2).
8. Taking into view that the custody of the petitioner no. 1 (corpus) with the respondent no. 4, could not prima facie be supported legally, the petitioner no. 1 (corpus) was permitted to go along with the petitioner no. 2 (his father) and his mother, who were present in the Court, on the previous date.
9. Today, upon the case being taken up, it was pointed out that the petitioner no. 1 (corpus) has been brought to the Court by the petitioner no. 2 (his father) and also his mother.
10. The petitioner No. 2, has been identified by his counsel, Sri. Mohd. Nasir.
11. Learned AGA-I, on the basis of an enquiry made from the petitioner no. 2 and his wife (parents of the petitioner-corpus), in Court, submits that they have stated that the petitioner no. 1 (corpus) is under their guardianship and custody, and is being taken care of.
12. A writ of habeas corpus is prerogative process for securing the liberty of the subject by affording effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody would have to be treated as equivalent to illegal detention for the purpose of granting a writ directing custody of the minor child.
13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890, 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 matters to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA, an
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.
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....
Point of law: Custody of child - child was forcibly taken away by the father from the custody of the mother. - Writ of habeas corpus, as has been consistently held, though a writ of right is not to b....
Widow mother is natural guardian of her minor child.
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.
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.
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 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.
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