Court No. - 50

Case :- HABEAS CORPUS WRIT PETITION No. - 883 of

2022

Petitioner :- Master Viraj @ Adamya (Minor) And Another

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

Counsel for Petitioner :- Rajendra Singh Chauhan

Counsel for Respondent :- G.A.,Rohan Gupta

Hon'ble Ram Manohar Narayan Mishra,J.

Heard learned counsel for the petitioners, learned counsel for

the respondent No.4, learned A.G.A. for the State and perused

the material placed on record.

Learned counsel for the petitioners submits that the corpus

Master Viraj @ Adamya is minor son of petitioner No.2 and

respondent No.4. The parents of corpus solemnized their

marriage on 21.7.2018 in accordance with Hindu rites and

rituals. They were blessed with a child i.e. petitioner No.1, who

is corpus in the present petition. After sometime of marriage,

the relation between husband and wife got strained as the

marriage of the respondent No.4 was not solemnized with her

sweet will and she was not ready to reside at the place of

petitioner No.2. On 7.7.2019, respondent No.4 left her

matrimonial home and started residing with her parents at her

parental house in Meerut along with the corpus and refused to

return back to her matrimonial home, even after a number of

mediation and meetings held for solving the dispute between

the spouse. Respondent No.4 is not permitting the petitioner

No.2 to meet his son Viraj, who is aged about 3 years and 6

months at the time of filing of present petitioner on 10.10.2022.

When petitioner No.2 failed to save his matrimonial life, he

filed an application for dissolving his marriage under Section

13(1)(ia) of Hindu Marriage Act, which is pending before the

competent court. The respondent No.4, who is mother of the

child has detained him in her custody and even has refused to

permit the petitioner No.2 to meet his son. It is further

submitted that for welfare and well-being of the child, the care,

love and protection of both the parents is equally required

whereas in the present case, the custody of child has been

denied to petitioner No.2 by respondent No.4. Therefore, it is

prayed that a writ or direction in the nature of habeas corpus be

issued to respondent No.4 to produce the corpus before the

Court and the corpus may be released from the custody of

respondent No.4 in favour of petitioner No.2. In alternative, the

petitioner No.2 may be permitted the visitation right to meet the

petitioner No.1 alteast once in a week.

Learned counsel for the respondent No.4 submitted that the

respondent No.4 has filed a petition before the competent Court

under Section 125 Cr.P.C. for maintenance of her minor child

and herself, which is pending before the court below. The

respondent No.4 is mother and natural guardian of the child, as

the child is below than 5 years of age, as provided under

Section 6 of Hindu Minority and Guardianship Act, 1956.

Before reaching to any conclusion it would be apt and

profitable to have a fleeting glance over the Section-6 of the

Hindu Minority and Guardianship Act, 1956 :

"6. Natural guardians of a Hindu minor.?The natural guardian of a Hindu

minor, in respect of the minor's person as well as in respect of the minor's

property (excluding his or her undivided interest in joint family property),

are?

(a) in the case of a boy or an unmarried girl?the father, and after him, the

mother: provided that the custody of a minor who has not completed the

age of five years shall ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl?the

mother, and after her, the father;

(c) in the case of a married girl?the husband: Provided that no person

shall be entitled to act as the natural guardian of a minor under the

provisions of this section?

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a

hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.?In this

section, the expression "fat