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2023 Supreme(Online)(All) 18633
ALLAHABAD HIGH COURT
Shamim Ahmed, J.
Smt. Ira Sharma – Appellant
Versus
Dhreerendra Pandey alias Dheerendra Vikram Pandey – Respondent
Habeas Corpus Petition
For the Appellants/Petitioners: Sri Shubham Aggarwal, Ms. Suksham Aggarwal, Sushil Kumar Singh
For the Respondents: Smt. Kiran Singh, Prem Prakash, Sri Manoj Kumar Misra
The welfare of minor children is the primary consideration in custody disputes, prioritizing emotional and psychological needs over parental legal claims.
Headnote:(A) Constitution of India - Article 226 - Habeas Corpus - The petitioner sought to get custody of her minor children from the respondent father alleging unlawful detention. The court emphasized the primary concern should be the welfare of the children and that the custody question is based on their best interests, rather than the legal rights of the parents. It ruled that the children were not in illegal custody, allowing their continued stay with the father, with provisions for interaction between the mother and children. (Paras 18, 19, 20, 28)
(B) Custody of Minor Children - The court held that custody should prioritize the psychological and emotional welfare of the child, as backed by precedents, reinforcing that both parents should remain involved despite disputes. (Paras 19, 21, 26)
(C) Maintainability of Petition - The court confirmed that a habeas corpus petition is maintainable only if the minor's custody is proven unlawful, highlighting that the ordinary remedy lies within specific custodial legislation. (Paras 26, 27)
| Table of Content |
|---|
| 1. relief sought for custody on habeas corpus basis. (Para 2 , 5 , 6) |
| 2. custody determined based on welfare and psychological impact. (Para 4 , 19 , 20 , 22) |
| 3. petitioner claims illegal detention and custodial rights. (Para 7 , 10 , 11 , 12) |
| 4. welfare of child as paramount consideration in custody. (Para 21 , 23 , 27) |
| 5. final order dismissing the habeas corpus petition. (Para 29) |
1. Heard Sri Shubham Aggarwal along with Ms. Suksham Aggarwal and Sushil Kumar Singh, the learned counsel for the petitioner - Smt. Ira Sharma as well as Smt. Kiran Singh and Prem Prakash, the learned Additional Government Advocate - I for the State - respondent Nos. 1 to 3 and Sri Manoj Kumar Misra, learned counsel for the respondent No.4 and pleadings between the parties have already been exchanged.
2. The petitioner - Ira Sharma has filed this Habeas Corpus petition with the following reliefs:
"i) to issue a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce the corpus of detenues, namely Rayan Pandey and Mirah Pandey at the earliest before this Hon'ble Court and to handover the custody of the said minor children to petitioner being their mother.
ii) to issue directions to the respondent No.4 through respondent No.1 and 2 for making necessary provisions for interaction and conversations between the petitioner / mother and the minor children immediately and during pendency of the present writ petition by mode of voice and video calls.
iii) to issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case in favour of the petitioner in the interest of justice.
iv) Allow the writ petition with costs."
3. This Court on 20.04.2023 had passed the following order:
"Sri Manoj Kumar Misra, Advocate has filed his Vakalatnama today in Court on behalf of opposite party No.4. The same is taken on record.
In compliance of order dated 02.03.2023 opposite party No.4 - Dhreerendra Pandey alias Dheerendra Vikram Pandey along with detenues, namely, Mirah Pandey - daughter and Rayan Pandey - son is present before this Court in person accompanied by Sub Inspector Sri Rajneesh Dwivedi and lady constable Ms. Archana Yadav, Police Station Kotwali Nagar, District Gonda.
Smt Ira Sharma, petitioner is also present before this Court in person. She has been identified by her counsel Mr. Shubham Aggarwal.
Heard Shri Shubham Aggarwal along with Ms. Suksham Aggarwal, the learned counsel for the petitioner - Smt Ira Sharma as well as Sri Manoj Singh and Prem Prakash, the learned A.G.A. - I for the State and Sri Manoj Kumar Misra, learned counsel for the opposite party No.4.
Learned counsel for the opposite party No.4 has filed counter affidavit today in Court after serving the copy of the same to learned counsel for the petitioner. The same is taken on record.
Learned counsel for the petitioner prays for and is allowed four days time to file rejoinder affidavit.
Smt. Ira Sharma, petitioner submits that she is staying in India till 2nd may, 2023. She further prays that she may be given at least one hour time in the evening between 6.00 p.m. to 7.00 p.m. to meet her children, during her stay in India and she wants to talk to her children on mobile and on video call.
Mr. Dhreerendra Pandey alias Dheerendra Vikram Pandey - opposite party No.4 has no objection to the request made by the petitioner - Smt Ira Sharma.
As prayed, Smt. Ira Sharma, petitioner is permitted to meet her children in the evening between 6.00 p.m. to 7.00 p.m.during her stay in India up to 02.05.2023 at the current residence of opposite party No.4 i.e. Omax R - 2, Building 15, Flat 1104, Lucknow and she is also permitted to talk to her children for ten minutes in the evening on mobile and on video call, but not after 9.00 p.m.
It is made clear that during visit of Smt Ira Sharma at the residence of opposite party No.4 and during mobile call, Mr. Dhreerendra Pandey alias Dheerendra Vikram Pandey - opposite
