# Aarav (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** Habeas Corpus Writ Petition No. 917 of 2019
- **Bench:** Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aarav-minor-anr-v-state-of-u-p-ors-45299
- **Pages:** 6

## Headnote

A. Constitution of India - Article 226 -
Writ of Habeas Corpus - Alternative
Remedy - Habeas corpus is a prerogative
process for securing the liberty of the
subject by affording an effective means
of immediate release from an illegal or
improper
detention
-
It
is
an
extraordinary
remedy
and
is
issued
where in
the
circumstances
of
the
particular case, ordinary remedy provided
by the law is either not available or is
ineffective; otherwise a writ will not be
issued. (Para 10)
B. Constitution of India - Article 226 -
Writ of Habeas Corpus - Grant -Detention
of minor - Writ also extends its influence
to restore the custody of a minor to his
guardian when wrongfully deprived of it -
In child custody matters, the power of
the High Court in granting the writ is
qualified
only
in
cases
where
the
detention of a minor by a person who is
not entitled to his legal custody - The
detention of a minor by a person who is
not entitled to his legal custody is treated
as equivalent to illegal detention for the
purpose
of
granting
writ,
directing
custody of the minor child. (Para 9)

C. Writ of Habeas Corpus - Guardians and
Wards Act - Jurisdiction - Difference -
There are significant differences between
the enquiry under the Guardians and
Wards Act and the exercise of powers by
a writ court which is of summary in
nature - What is important is the welfare
of the child - In the writ court, rights are
determined only on the basis of affidavits
- Where the court is of the view that a
detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court - It is only in
exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus. (Para 11)

Habeas Corpus Writ Petition dismissed.
(E-1)

List of cases cited :-

## Text

1 All. Aarav (Minor) & Anr. Vs. State of U.P. & Ors.
919
enhanced amount of compensation from
the date of filing of the claim petition till
the actual payment is made.

12. The appeal is allowed in part.

13. The impugned judgement and
award stand modified to the extent
indicated hereinabove.

14. The parties shall bear their
respective costs.
----------
(2020)1ILR 919

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE VIVEK KUMAR SINGH, J.

Habeas Corpus Writ Petition No. 917 of 2019

Aarav (Minor) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyendra Narayan Singh, Sri Ashutosh
Pandey

Counsel for the Respondents:
A.G.A., Sri Ishwar Chandra Tyagi, Sri
Anmol Kumar Dubey, Sri Nirvikar Gupta

A. Constitution of India - Article 226 -
Writ of Habeas Corpus - Alternative
Remedy - Habeas corpus is a prerogative
process for securing the liberty of the
subject by affording an effective means
of immediate release from an illegal or
improper
detention
-
It
is
an
extraordinary
remedy
and
is
issued
where in
the
circumstances
of
the
particular case, ordinary remedy provided
by the law is either not available or is
ineffective; otherwise a writ will not be
issued. (Para 10)
B. Constitution of India - Article 226 -
Writ of Habeas Corpus - Grant -Detention
of minor - Writ also extends its influence
to restore the custody of a minor to his
guardian when wrongfully deprived of it -
In child custody matters, the power of
the High Court in granting the writ is
qualified
only
in
cases
where
the
detention of a minor by a person who is
not entitled to his legal custody - The
detention of a minor by a person who is
not entitled to his legal custody is treated
as equivalent to illegal detention for the
purpose
of
granting
writ,
directing
custody of the minor child. (Para 9)

C. Writ of Habeas Corpus - Guardians and
Wards Act - Jurisdiction - Difference -
There are significant differences between
the enquiry under the Guardians and
Wards Act and the exercise of powers by
a writ court which is of summary in
nature - What is important is the welfare
of the child - In the writ court, rights are
determined only on the basis of affidavits
- Where the court is of the view that a
detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court - It is only in
exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus. (Para 11)

Habeas Corpus Writ Petition dismissed.
(E-1)

List of cases cited :-

1. Tejaswini Gaud and Ors. Vs. Shekhar
Jagdish Prasad Tewari and others; (2019) 7
Supreme Court Cases 42

(Delivered by Hon'ble Vivek Kumar
Singh, J.)

1. Heard Sri Satyendra Narayn Singh
and Sri Ashutosh Pandey, learned counsel
for the petitioners and Sri Ishwar Chandra
920 INDIAN LAW REPORTS ALLAHABAD SERIES
Tyagi, learned counsel for the opposite
party no.2 and Sri Azad Singh and Sri
Abhinav Prasad, learned A.G.A. for the
State-respondent.

2. This Habeas corpus writ petition
has been filed on behalf of corpus namely
Arnav by petitioner no.2/father, with the
following prayer:-

"(i). Issue a writ, order or
direction in the nature of habeas corpus
directing the respondent nos.2 to 4 to
produce the corpus/petitioner no.1 before
this Hon'ble Court and handover him to
the petitioner no.2.

(ii). Issue a writ, order or
direction in the nature of habeas corpus
directing the respondent nos.2 to 4 to
produce the petitioner no.1 i.e. corpus
before this Hon'ble Court and release the
petitioner no.1/corpus from the illegal
detention of respondent nos.2 to 4 and
hand over the petitioner no.1 to the
petitioner no.2 i.e. father Dr. Abhijat
Kumar.

(iii). Issue a writ, order or
direction in the nature of mandamus
protecting the interest of the petitioner,
which this Hon'ble Court deem fit and
proper under the facts and circumstances
of the case."

3. The facts of the case in capsulated
form are that the petitioner no.2 who is the
father
of
petitioner
no.1
having
qualification of M.B.B.S. (M.S.) Surgery
working as consultant surgeon at Navyug
Medical Centre Pvt. Ltd., which is his own
hospital and is also working as Senior
Resident at Basti Medical College, Basti.
The marriage of the petitioner no.2 namely
Dr. Abhijat Kumar was solemnized with
the respondent no.2 namely Dr. Sweta on
31.1.2009, which was registered before the
Registrar, Hindu Marriage District Basti
on 19.10.2016 and out of the said wedlock
a male child i.e. corpus was born on
7.7.2012.
The
respondent
no.2
was
working as Doctor in Navyug Medical
Centre and she was also one of the
Director in the aforesaid medical centre
alongwith petitioner no.2 and his parents
Dr. Naveen Kumar and Dr. Shashi
Srivastava. The petitioner no.1 is getting
his education in Class-II, Section A at St.
Basil's School.

4. The respondent no.2 had moved an
application
to
C.M.S.,
V.R.T.K.
mentioning therein that due to some
personal reasons she cannot attend the
hospital therefore, the leave may be
granted w.e.f. 19.8.2019 to 31.8.2019. The
respondent no.2 also sent a letter of
resignation
from
service
at
C.M.S.,
V.R.T.K., District Women Hospital, Basti,
mentioning therein that she is unable to
work at Basti, reference is made to
annexure-5
and
6
to
the
affidavit
accompanying this habeas corpus writ
petition.

5.

Pursuant
to
orders
dated
14.10.2019 and 14.11.2019 the corpus
namely Arnav (Minor) has been produced
by her mother i.e. respondent no.2, both
have been identified by their counsel Sri
Ishwar
Chandra
Tyagi,
representing
respondent no.2.

6. On being asked the corpus
informed that his name is Aarav.

On being asked, with whom he
is living right now, the corpus informed
that he is living with his mother.

On being asked, with whom he
wants to live, the corpus informed that
he wants to live with his mother.
1 All. Aarav (Minor) & Anr. Vs. State of U.P. & Ors.
921

7. The counsel for the respondent
contend that the writ of habeas corpus
cannot
be
issued
when
efficacious
alternative remedy is available to the
petitioner No.2 under Hindu Minority and
Guardianship Act, 1956. It is also
contended that the question of custody of
the minor child is to be decided not on
consideration of the legal rights of the
parties; but on the sole and predominant
criterion of what would best serve the
interest and welfare of the minor and, as
such, the respondents who are taking care
of the child since more than a year, they
alone would be entitled to have the
custody of the child in preference to
petitioner No.1-father of the child.

8. I have carefully considered the
rival contentions and statement of the
corpus recorded herein above.

9. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an effective
means of immediate release from an illegal
or improper detention. The writ also
extends its influence to restore the custody
of a minor to his guardian when
wrongfully deprived of it. The detention of
a minor by a person who is not entitled to
his legal custody is treated as equivalent to
illegal detention for the purpose of
granting writ, directing custody of the
minor child.

10. Habeas corpus proceedings is not
to justify or examine the legality of the
custody. Habeas corpus proceedings is a
medium through which the custody of the
child is addressed to the discretion of the
court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the
writ is issued where in the circumstances
of the particular case, ordinary remedy
provided by the law is either not available
or is ineffective; otherwise a writ will not
be issued. In child custody matters, the
power of the High Court in granting the
writ is qualified only in cases where the
detention of a minor by a person who is
not entitled to his legal custody. In view of
the pronouncement on the issue in
question by the Supreme Court and the
High Courts, in our view, in child custody
matters, the writ of habeas corpus is
maintainable where it is proved that the
detention of a minor child by a parent or
others was illegal and without any
authority of law.

11. In child custody matters, the
ordinary remedy lies only under the Hindu
Minority and Guardianship Act or the
Guardians and Wards Act as the case may
be. In cases arising out of the proceedings
under the Guardians and Wards Act, the
jurisdiction of the court is determined by
whether the minor ordinarily resides
within the area on which the court
exercises such jurisdiction. There are
significant differences between the enquiry
under the Guardians and Wards Act and
the exercise of powers by a writ court
which is of summary in nature. What is
important is the welfare of the child. In the
writ court, rights are determined only on
the basis of affidavits. Where the court is
of the view that a detailed enquiry is
required, the court may decline to exercise
the extraordinary jurisdiction and direct
the parties to approach the civil court. It is
only in exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus.

12. In the matter of Tejaswini Gaud
and Ors. Vs. Shekhar Jagdish Prasad
922 INDIAN LAW REPORTS ALLAHABAD SERIES
Tewari and others reported in (2019) 7
Supreme Court Cases 42 My Lord's of
The Apex Court have observed as
follows:-

"25. Welfare of the minor child
is the paramount consideration:- The
court while deciding the child custody
cases is not bound by the mere legal right
of the parent or guardian. Though the
provisions of the special statutes govern
the rights of the parents or guardians, but
the welfare of the minor is the supreme
consideration in cases concerning custody
of the minor child. The paramount
consideration for the court ought to be
child interest and welfare of the child.

26. After referring to number of
judgments and observing that while
dealing with child custody cases, the
paramount consideration should be the
welfare of the child and due weight should
be given to child's ordinary comfort,
contentment, health, 8 Lahari Sakhamuri
v. Sobhan Kodali 2019 (5) SCALE 97
education, intellectual development and
favourable surroundings, in Nil Ratan
Kundu9, it was held as under:-

"49. In Goverdhan Lal v.
Gajendra Kumar, AIR 2002 Raj 148 the
High Court observed that it is true that the
father is a natural guardian of a minor
child and therefore has a preferential right
to claim the custody of his son, but in
matters concerning the custody of a minor
child, the paramount consideration is the
welfare of the minor and not the legal
right of a particular party. Section 6 of the
1956 Act cannot supersede the dominant
consideration as to what is conducive to
the welfare of the minor child. It was also
observed that keeping in mind the welfare
of the child as the sole consideration, it
would be proper to find out the wishes of
the child as to with whom he or she wants
to live.

50.
Again,
in
M.K.
Hari
Govindan v. A.R. Rajaram, AIR 2003
Mad 315 the Court held that custody cases
cannot be decided on documents, oral
evidence or precedents without reference
to "human touch". The human touch is the
primary one for the welfare of the minor
since the other materials may be created
either by the parties themselves or on the
advice of counsel to suit their convenience.

51. In Kamla Devi v. State of
H.P. AIR 1987 HP 34 the Court observed:

"13. ? the Court while deciding
child custody cases in its inherent and
general jurisdiction is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can
stand in the way of the Court exercising its
parens patriae jurisdiction arising in such
cases
giving
due
weight
to
the
circumstances such as a child's ordinary
comfort, contentment, intellectual, moral
and physical development, his health,
education and general maintenance and
the favourable surroundings. These cases
have to be decided ultimately on the
Court's view of the best interests of the
child whose welfare requires that he be in
custody of one parent or the other." 9 Nil
Ratan Kundu v. Abhijit Kundu, (2008) 9
SCC 413

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
and complex question as to the custody of
a minor, a court of law should keep in
mind the relevant statutes and the rights
flowing therefrom. But such cases cannot
be decided solely by interpreting legal
provisions. It is a human problem and is
1 All. Aarav (Minor) & Anr. Vs. State of U.P. & Ors.
923
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict
rules of evidence or procedure nor by
precedents. In selecting proper guardian
of a minor, the paramount consideration
should be the welfare and well-being of
the child. In selecting a guardian, the
court
is
exercising
parens
patriae
jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary
comfort, contentment, health, education,
intellectual development and favourable
surroundings. But over and above physical
comforts, moral and ethical values cannot
be ignored. They are equally, or we may
say, even more important, essential and
indispensable considerations. If the minor
is old enough to form an intelligent
preference or judgment, the court must
consider such preference as well, though
the final decision should rest with the
court as to what is conducive to the
welfare of the minor."

27. Reliance was placed upon
Gaurav Nagpal10, where the Supreme
Court held as under:-

"32. In McGrath, (1893) 1 Ch
143, Lindley, L.J. observed: (Ch p. 148)
The dominant matter for the consideration
of the court is the welfare of the child. But
the welfare of the child is not to be
measured by money only nor merely
physical comfort. The word 'welfare' must
be taken in its widest sense. The moral or
religious welfare of the child must be
considered as well as its physical wellbeing. Nor can the tie of affection be
disregarded." (emphasis supplied) ???

50. When the court is confronted
with conflicting demands made by the
parents, each time it has to justify the
demands. The court has not only to look at
the issue on legalistic basis, in such
matters human angles are relevant for
deciding those issues. The court then does
not give emphasis 10 Gaurav Nagpal v.
Sumedha Nagpal (2009) 1 SCC 42 on
what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare
of the minor. As observed recently in
Mausami Moitra Ganguli case (2008) 7
SCC 673, the court has to give due
weightage
to
the
child's
ordinary
contentment,
health,
education,
intellectual development and favourable
surroundings but over and above physical
comforts, the moral and ethical values
have also to be noted. They are equal if
not more important than the others.

51. The word "welfare" used in
Section 13 of the Act has to be construed
literally and must be taken in its widest
sense. The moral and ethical welfare of the
child must also weigh with the court as
well as its physical well-being. Though the
provisions of the special statutes which
govern the rights of the parents or
guardians
may
be
taken
into
consideration, there is nothing which can
stand in the way of the court exercising its
parens patriae jurisdiction arising in such
cases.

28. Contending that however
legitimate the claims of the parties are,
they are subject to the interest and welfare
of the child, in Rosy Jacob11, this Court
has observed that:-

"7. .? the principle on which the
court should decide the fitness of the
guardian mainly depends on two factors:
(i) the father's fitness or otherwise to be
the guardian, and (ii) the interests of the
minors." ??..

"15. .... The children are not
mere chattels : nor are they mere playthings for their parents. Absolute right of
parents over the destinies and the lives of
their children has, in the modern changed
social
conditions,
yielded
to
the
924 INDIAN LAW REPORTS ALLAHABAD SERIES
considerations of their welfare as human beings
so that they may grow up in a normal balanced
manner to be useful members of the society and
the guardian court in case of a dispute between
the mother and the father, is expected to strike a
just
and
proper
balance
between
the
requirements of welfare of the minor children
and the rights of their respective parents over
them. The approach of the learned Single
Judge, in our view, was correct and we agree
with him. The Letters Patent Bench on appeal
seems to us to 11 Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840 have erred
in reversing him on grounds which we are
unable to appreciate."

13. In this view of the matter as well
as considering the statement of the corpus
made before this Court, which is noted
above, this habeas corpus writ petition
fails and is dismissed, accordingly.

14. However, till the child is settled
down in the atmosphere of the second
respondent-mother's house, the petitioner
No.2 i.e. father alongwith grand parents of
the corpus shall visit the child at the
second respondent's house on Saturdays or
Sundays between 11:00 A.M. to 2:00 P.M.
till the corpus attains the age of 10 years.
The second respondent shall ensure the
comfort of petitioner No.2 as well as the
grand parents of the corpus during such
time of their stay in her house.

15. The petitioner No.2 is also
restrained from indulging into any act of
violence with the second respondent or
with the corpus and in case he is found in
violation of the order of this Court that is
being passed today, he will be personally
answerable to this Court.

16. It is made clear that dismissal of
writ petition shall not preclude the
petitioner from seeking remedy available
to him in law. Any observation made by
this Court, while deciding this writ
petition, shall not come in the way of
either party.

17. The amount of Rs.15,000/-
deposited
by
the
father
of
the
corpus/petitioner no.1 shall be paid to the
mother of corpus namely Dr. Sweta by the
registry of this Court after due verification
through her counsel.
----------
(2020)1ILR 924

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 26883 of 2019
&
Misc. Single No. 22127 of 2019

Neelam Nigam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap Singh

Counsel for the Respondents:
C.S.C.

A. Constitution of India-Art- 243 F-U.P
Panchayat
Raj
Act,1947-Sec
5A
&
95(1)(g)-challenging show cause noticeu/s. 5A-also an order of D.M-removing
petitioner
from
the
office
of
Gram
Pradhan-on ground of-holding the office
of profit i.e. Auxiliary Nursing Midwiferyis a disqualification.

B. Order of D.M based on circular dt.
28.06.2010-issued
by
State
Election
Commission-no sanctity of law-unless an
office-validly specified as office of profit-