# Aarfa Bano v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-16
- **Case number:** Habeas Corpus Writ Petition No. 148 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aarfa-bano-v-state-of-u-p-ors-50442
- **Pages:** 3

## Headnote

A. Civil Law - U. P. Qualifying Service for
Pension and Validation Act, 2021-Sections
2 & 3-Retiral benefits-Reckoning of past
service-Rules of 1974 do not contain any
provision for making appointment to a
post of Collection Amin on a seasonal
basis and, therefore, any service rendered
by an employee prior to his appointment
under the Rules of 1974, would not be in
furtherance of an appointment made in
accordance with service rules and it will
not be reckoned as " qualifying service"
under Section 2 of Act 1 of 2021. (Para 31
to 53)
The review petition is allowed. (E-6)

List of Cases cited:

## Text

172 INDIAN LAW REPORTS ALLAHABAD SERIES

It is also noteworthy that on the
previous date of argument on 20.04.2023
when the Court had asked the detenueMaster Rayan Pandey (son) in open court,
whether he wants to go with her mother, he
refused to go with her mother and submits
that he want to live with his father and
submits that he is studying in class IV in
G.D. Goenka Public School, Lucknow
other detenue, Mirah Pandey is minor girl
and she is aged about four and half years
and she is also studying in Class Ist in G.D.
Goenka Public School, Lucknow and as
there was an allegation against the mother
Ira Sharma of committing adultery and that
was the one of the ground for divorce
between Ira Shama and Dheerendra Pandey
@ Dheerendra Vikram Pandey, thus this
Court is of the view that the girl child
Mirah Pandey shall remain in custody with
her father in the interest of Justice as the
welfare love affection company protection
is in the custody of the father/ respondent
no. 4.

Master Rayan Pandey and Mirah
Pandey are studying in G.D. Goenka Public
School, Sector-B, Sushant Golf City,
Shaheed Path, Lucknow and are residing
with their father in Lucknow and their
studies cannot be disturbed for the present
academic session, therefore, in view of the
discussion and observation made above,
this court issues following directions :

(i) The custody of both the
children; Master Rayan Pandey(son) and
Mirah Pandey (daughter) shall remain with
father
respondent
No.4-Dhreerendra
Pandey @ Dheerendra Vikram Pandey.

(ii) Since the mother-Ira Sharma
lives in U.S.A., she is permitted to meet the
children during her stay in India in the
evening between 6:00 PM to 8:00 PM at
the current residence of respondent no. 4 i.e
Omax R - 2 Building 15, Flat 1104
Lucknow with the condition of giving one
week prior information to the respondent
No.4- Dhreerendra Pandey @ Dheerendra
Vikram Pandey (father) regarding her
arrival at Lucknow. It is further provided
that if she is in abroad, she allowed to have
conversation with her children Mirah
Pandey-daughter and Rayan Pandey-son by
mobile phone, whats app call or video call
during 8.00 p.m to 8.30 p.m. as per Indian
Standard Time.

(iii) If the mother of children
wants to give any gifts on account of love
and affection or do anything for well being
of children then father/ respondent no. 4 or
any of his family members will not make
any objection. However, mother shall keep
in mind that such thing will be given,
which are for use and safe for the children
health.

(iv) The petitioner Ira Sharma is
at liberty to approach the appropriate forum
for claiming the custody of the children
under the Hindu Minority and Guards Act
1956 or under the Guardians and Wards
Act, 1890 as the case may be in accordance
with law.

29.
With
the
above
observations/directions, this habeas corpus
petition is finally disposed of.
----------
(2023) 6 ILRA 172
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.05.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 148 of 2023

Aarfa Bano ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
6 All. Aarfa Bano Vs. State of U.P. & Ors.
173
Sikandar Zulqarnain Khan

Counsel for the Respondents:
G.A.

Civil Law - Constitution of India, 1950 -
Article 226 - Writ of Habeas Corpus - Married
daughter staying with her parents - father-inlaw prayed for custody of detenue - detenue is
petitioner's daughter-in-law who is living with
her parents - Maintainability - Locus standi of
father-in-law - court finds that, Marriage is a
Contract as per the Muslim Law and husband is
bound to give protection, shelter and fulfil all
the desires and day to day requirement of his
wife - After marriage husband of detenue is
living and earning in Kuwait and detenue is
living with her parents - therefore it cannot be
said that she is in illegal detention - held,
husband has remedy to approach before
appropriate forum, but not the father-in-law, as
he has no locus at all - accordingly, present
habeas corpus is disposed of. (Para - 5)

Writ Petition Disposed of. (E-11)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Sikandar Zulqarnain
Khan, the learned counsel for the petitioner,
Shri Sushil Kumar Mishra, the learned
A.G.A.-I for the State-respondent Nos. 1
and 2 and perused the record.

2. The present habeas corpus petition
has been filed with the following prayer:

"(i) issue a writ, order or
direction in the nature of habeas corpus
directing the opposite parties to produce
the detenue before this Hon'ble Court who
is illegally detained by the opposite party
No. 3 and 4 without any reason since 2021
and free to her from illegal custody.

(ii) issue any other writ order or
direction which this Hon'ble court may just
and proper also kindly be passed in favour
of the detenue.

(iii) allow writ petition in favour
of the detenue with costs."

3. This petition has been filed by the
father-in-law of the detenue, with the
prayer that his daughter-in-law, who is
married with the son of petitioner, is in
illegal custody of her parents, thus,
custody of detenue be given to her fatherin-law as her parents are not allowing her
to go to her matrimonial house. It has
further been stated in the petition that
husband of detenue, who is son of
petitioner is living in Kuwait for earning
his livelihood.

4. Shri Sushil Kumar Mishra, the
learned A.G.A.-I has raised a preliminary
objection by submitting that the present
petition has not been filed by the husband
of the detenue and it has been filed by the
father-in-law of the detenue, thus, it is not
maintainable.

5. Marriage is a contract as per the
Muslim Law and husband is bound to
give protection, shelter and fulfill all the
desires and day to day requirements of
his wife. After marriage the husband of
the detenue is living and earning in
Kuwait and detenue is living with her
parents, thus, it cannot be said that she is
in illegal detention. It may be possible
that detenue herself does not want to go
to her matrimonial house when her
husband is not living there. Even if there
is any grievance, the husband has remedy
to approach before appropriate forum, but
not the father-in-law, as he has no locus
at all.

6. With the above observations, the
present habeas corpus is finally disposed
of.
----------
174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 174
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application No. 121 of 2022
Along with
Civil Misc. Review Application No. 307 of 2022
Civil Misc. Review Application No. 117 of 2022
Civil Misc. Review Application No. 84 of 2023

Board of Revenue & Ors. ...Applicants
Versus
Ram Ji Shukla ...Opposite Party

Counsel for the Applicants:
C.S.C.

Counsel for the Opposite Party:
Devi Prasad Maurya

A. Civil Law - U. P. Qualifying Service for
Pension and Validation Act, 2021-Sections
2 & 3-Retiral benefits-Reckoning of past
service-Rules of 1974 do not contain any
provision for making appointment to a
post of Collection Amin on a seasonal
basis and, therefore, any service rendered
by an employee prior to his appointment
under the Rules of 1974, would not be in
furtherance of an appointment made in
accordance with service rules and it will
not be reckoned as " qualifying service"
under Section 2 of Act 1 of 2021. (Para 31
to 53)
The review petition is allowed. (E-6)

List of Cases cited:

1. Ghanshyam Mishra Vs St. of U.P. & ors.
(2013) SCC Online All 3809

2. S.K. Naushad Rahman Vs U.O.I. & ors.
(2022) AIR SC 1494
3. G.J. Farnandes Vs St. of Maysoor (1967) AIR
SC 1753

4. Vijay Narayan Thatte Vs St. of Mah. (2009) 9
SCC 92

5. Prem Singh Vs St. of U.P. (2019) 10 SCC 516

6. St. of U.P. & ors. Vs Mahendra Singh, SPLD
No. 1003 of 2020

7. Bhavnagar Univ. Vs Palitana Sugar Mill (P)
Ltd. (2003) 2 SCC 111

8. BSNL Vs Mishri Lal (2011) 14 SCC 739

9. Chandra Singh Vs St. of U.P. & ors. (2022) 3
ALJ 781

10. Board of Revenue Vs Prasidh Narain
Upadhyay (2006) 2 All LJ 66

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Dr. L. P. Mishra, Sri S. S.
Rajawat, Sri Yogendra Kumar Mishra, Sri
Dileep Gautam, Sri Devi Prasad Maurya,
Sri
Kuldeep
Pati
Tripathi,
learned
Additional Advocate General assisted by
Sri Rohit Nandan Shukla, learned Standing
Counsel, Sri Shailendra Kumar Singh,
learned Chief Standing Counsel assisted by
Sri Vivek Shukla, the learned Additional
Chief Standing Counsel and Sri. Amitabh
Rai, the learned Additional Chief Standing
Counsel for the respective parties.

2. Review Application No. 121 of
2022 has been filed for review of the
judgment and order dated 21.06.2021
passed by a coordinate Bench of this Court
whereby the Special Appeal Defective No.
259 of 2020 filed by the appellant against
the judgment and order dated 26.02.2019
passed by the learned Single Judge
allowing Writ Petition No. 8737 (S/S) of
2011 filed by the opposite party-petitioner
and holding that the opposite party-