Neutral Citation No. - 2023:AHC:212164

Reserved on 21.9.2023

Delivered on 06.11.2023

Court No. - 81

Case :- HABEAS CORPUS WRIT PETITION No. - 576 of 2022

Petitioner :- Ansh Jaiswal (Minor) (Corpus) And Another

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Manoj Kumar Gupta

Counsel for Respondent :- G.A.,Dharmendra Kumar

Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri P.K.Singh, Advocate holding brief of Sri M.K.Gupta, learned

counsel for the petitioners, Sri M. S. Pipersenia, Advocate holding brief of

Sri Dharmendra Kumar, learned counsel for respondent nos. 4 to 7 and

learned A.G.A. for the State.

2. This habeas corpus writ petition has been filed by the petitioner no. 2-

Vikas Jaiswal on behalf of his son petitioner no. 1-Ansh Jaiswal to issue a

writ, order direction in nature of habeas corpus directing the respondent

nos. 2 and 3 to produce him and set him free from illegal custody of

respondent nos. 4 to 7 i.e., grandparents (maternal) of the corpus and other

members of his family.

3. The facts relevant as emanating from petition, counter affidavit,

rejoinder affidavit and supplementary affidavit are as below:-

The corpus was born to the petitioner no. 2 from his former wife-Shani

Jaiswal on 19.07.2016; Shani Jaiswal died on 11.12.2018 because of some

illness; at the time of death of his wife, the corpus was less than 1½ year

old; the petitioner no. 2 went into mental trauma because of death of his

wife; there was no one to take care of his minor son except his son’s old

grandmother; in these circumstances, Ansh Jaiswal was taken away by the

respondents for taking better care; in a subsequent development, the

petitioner no. 2 got remarried to another woman namely, Garima Jaiswal

and now he is having a girl child from her, born on 01.04.2021. It is

alleged in the petition that the petitioner no. 2 has been regularly visiting

his in-laws house and was helping them financially for taking proper care

of his son but after the birth of girl child in his family, the respondent nos.

4 to 7 have been creating hindrance in meeting his son. How they are not

permitting him to meet his son and also declining to handover his son’s

custody to him.

4. The arguments of the petitioner are that the custody of the child was

handed over to his maternal grandparents, as at that time he was less than

1½ year old and that his own mother i.e., the paternal grandmother of the

child had grown too old; the circumstances were not conducive for him to

keep the child with them, therefore, the child was given to the maternal

grandparents only for the time being. He has been regularly visiting his

child but since after his remarriage and birth of a girl child in his family, he

has been denied of his legal rights; he being the real father of the child, is

entitled for custody. The custody of his child with the maternal

grandparents is illegal, therefore, his application for habeas corpus

deserves to be allowed.

5. The main contentions from the side of the respondents are that the

relations between the husband and his late wife were not normal. The

entire family of the petitioner no. 2 used to torture their daughter-Shani

Jaiswal. Shani Jaiswal suffered from serious abdominal disease. The

family members of petitioner no. 2 never took proper care of Shani and she

died in December 2018. The corpus was staying with his maternal

grandparents alongwith his mother since before her death. The petitioner

no. 2 never tried even to know about his son’s welfare. He has suddenly

woken up after a lapse of 4 years. Presently, the petitioner no. 2 is happily

married to another woman and is already having a baby girl and in such

circumstances, the custody of his son should not be transferred to him for

the reason that there is no chance of his being taken good care of at his

father’s place in a new atmosphere. It is further vehemently argued that the

custody of the child with maternal grandparents c