Court No. - 88

Case :- HABEAS CORPUS WRIT PETITION No. - 938 of

2022

Petitioner :- Gauransh (Minor) And Another

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Ashok Kumar Singh Bais

Counsel for Respondent :- G.A.

Hon'ble Raj Beer Singh,J.

1. This habeas corpus writ petition has been filed by seeking

following reliefs:

i. Issue a writ order or direction in the nature of Habeas Corpus directing the respondent

no. 4 to produce the corpus before this Hon'ble Court and hand over the custody of the

Corpus in favour of the petitioner, so that justice may be done.

ii. Issue a writ order or direction in the nature of Habeas Corpus and permit the

petitioner to meet his son twice in a month, so that justice may be done.

iii. Issue any suitable order or direction which this Hon'ble Court may deem fit and

proper under the facts and circumstances of the case, so that justice may be done.

iii. Award the cost of the petition in favour of the petitioners.

2. Heard learned counsel for the petitioners and learned A.G.A.

for the State and perused the record.

3. It has been argued by the learned counsel for the petitioners

that petitioner no.2 is father of petitioner no.1 Gauransh

(minor)/corpus and that he is in the custody of respondent no.4,

who is mother of the said corpus. The corpus is aged only about

five years. There is matrimonial dispute between petitioner no.2

and his wife/respondent no.4 and the petitioner No. 2 is paying

maintenance for the petitioner No.1 regularly. Learned counsel

submitted that being father and natural guardian of minor child,

he has a right for custody of his child and thus his custody be

handed over to the petitioner No.2. It was submitted that the

respondent No.4 is not even allowing petitioner No.2 to see and

meet the child and alternatively it was also submitted that

petitioner No.2 be permitted to meet his son/corpus twice in a

month.

4. Learned AGA has opposed the petition.

5. It is well settled that writ of habeas corpus is a prerogative

writ and an extraordinary remedy. The object and scope of a

writ of habeas corpus in the context of a claim relating to

custody of a minor child fell for consideration in case of Sayed

Saleemuddin vs. Dr. Rukhsana and others (2001)5 SCC 247

and it was held that in a habeas corpus petition seeking transfer

of custody of a child from one parent to the other, the principal

consideration for the court would be to ascertain whether the

custody of the child can be said to be unlawful or illegal and

whether the welfare of the child requires that the present

custody should be changed. In said case it was held as under:-

"11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of

minor children the principal consideration for the Court is to ascertain whether the

custody of the children can be said to be unlawful or illegal and whether the welfare of

the children requires that present custody should be changed and the children should be

left in care and custody of somebody else. The principle is well settled that in a matter of

custody of a child the welfare of the child is of paramount consideration of the Court…"

6. Similarly, in the case of Nithya Anand Raghvan v State (NCT

of Delhi) and another 2017 8 SCC 454, it was held that the

principal duty of the court in such matters is to ascertain

whether the custody of the child is unlawful and illegal and

whether the welfare of the child requires that his present

custody should be changed and the child be handed over to the

care and custody of any other person. The relevant observations

made in the judgement are as follows:-

"44. The present appeal emanates from a petition seeking a writ of habeas corpus for the

production and custody of a minor child. This Court in Kanu Sanyal v. District

Magistrate, Darjeeling, (1973) 2 SCC 674, has held that habeas corpus was essentially a

procedural writ dealing