Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 2237

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Master Mahib Sajjad Masood And Another - Appellants
Versus
State Of U.P. And 10 Others - Respondents
Habeas Corpus Writ Petition No. - 880 of 2023
Decided on : 29-01-2024

Advocates Appeared:
For the Appellant : Om Prakash Mishra, R.P.S. Chauhan
For the Respondent: G.A., R P Rajan

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.

Headnote:(A) Guardians and Wards Act, 1890 - Sections 12 and 17 - Principles of Mahomedan Law - Custody of minor child - Petition for habeas corpus dismissed as custody with mother not illegal; welfare of child paramount - Court found no illegal detention and advised parties to seek appropriate legal forum for custodial rights. (Paras 13, 23, 27, 32)

(B) Writ of habeas corpus - Nature and scope - Writ may be granted only on reasonable grounds; not to examine legality of custody unless detention is unlawful. (Paras 22, 24)

Facts of the case:
The petitioners sought custody of a minor child from the mother, who claimed to have left her matrimonial home voluntarily. The father expressed unwillingness to take back the mother.

Findings of Court:
The court found no evidence of illegal detention and upheld the mother's custody of the child.

Issues: The main issues were whether the mother's custody was illegal and the appropriate forum for custodial rights.

Ratio Decidendi: The court ruled that the welfare of the child is paramount and that the writ of habeas corpus is not to be used to challenge custody unless it is unlawful.

Result: Habeas corpus petition dismissed.

JUDGMENT :

Hon'ble Dr. Yogendra Kumar Srivastava, J.

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:-

"1. a writ, order or direction in the nature of mandamus directing and commanding all the respondent authorities as well as private respondents to produce Master Mahib Sajjad Masood the corpus before this Hon'ble Court to set at liberty forthwith and to give custody to his natural guardian - father (petitioner no.2) to secure his future."

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 3.06.2023, 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. Sect