# Anmol Shivhare v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 556
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Habeas Corpus Writ Petition No. 61 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anmol-shivhare-v-state-of-u-p-ors-46110
- **Pages:** 9

## Headnote

A. Constitution of India,1950-Article 226unlawful custody of minor son-rule nisi
issued-minor was produced before the
court-wife walked out on her lawfully
wedded husband without a divorce, and
married
with
another
person-
However,mother acted in an immoral way
to walk out on her husband-but, the
tender age of 5 years old boy tends to go
with her mother on asking question
before the court.(Para 1 to 21)
1 All. Anmol Shivhare Vs. State of U.P. & Ors.
557
The petition is disposed of. (E-5)

List of Cases Cited:

## Text

556 INDIAN LAW REPORTS ALLAHABAD SERIES

"On a studied perusal of the said
decision, it is noticeable that the Court has
stated about the role of the lawyer and the
role of the Bar Association in the backdrop
of professional ethics and norms of the
Constitution. It has been categorically held
therein that the professional ethics require
that a lawyer cannot refuse a brief,
provided a client is willing to pay his fee
and the lawyer is not otherwise engaged
and, therefore, no Bar Association can pass
a resolution to the effect that none of its
members will appear for a particular
accused whether on the ground that he is a
policeman or on the ground that he is a
suspected terrorist. We are disposed to
think that in Mohd. Sukur Ali (supra), the
aforesaid case was cited only to highlight
the role of the Bar and the ethicality of the
lawyers. It does not flow from the said
pronouncement that it is obligatory on the
part of the Appellate Court in all
circumstances to engage amicus curiae in
a criminal appeal to argue on behalf of the
accused
failing
which
the
judgment
rendered by the High Court would be
absolutely unsustainable."

43. Simply because the counsels had
not appeared in the revised call, the
decision rendered by the coordinate Bench
after perusing the record cannot be
rendered otiose and the order cannot be
recalled. Bar expressed under Section 362
Cr.P.C. is clear, that once the Court had
signed
its
judgment
or
final
order,
disposing of a case, it shall not alter or
review the same except to correct clerical
or arithmetical error.

44. This bar has been provided by the
legislature intentionally so as to put a
safeguard that the final judgment and
orders are not altered or reviewed now and
then. Apex Court has also felt that if any
leverage is granted and the orders are
permitted to be recalled on the ground of
absence of counsels, it would cause great
chaos and thus has propounded six legal
propositions wherein the Courts can decide
the cases in absence of counsel only after
perusal of record and the same can be
remedified only by the higher Court.

45. Thus, in view of the law laid
down by the Apex Court, no judgment or
order can be altered, reviewed or recalled
in view of bar under Section 362 Cr.P.C.

46. In the result, all the recall
applications are hereby rejected.
----------
(2021)01ILR A556
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 61 of 2020

Anmol Shivhare ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Mishra

Counsel for the Respondents:
G.A.

A. Constitution of India,1950-Article 226unlawful custody of minor son-rule nisi
issued-minor was produced before the
court-wife walked out on her lawfully
wedded husband without a divorce, and
married
with
another
person-
However,mother acted in an immoral way
to walk out on her husband-but, the
tender age of 5 years old boy tends to go
with her mother on asking question
before the court.(Para 1 to 21)
1 All. Anmol Shivhare Vs. State of U.P. & Ors.
557
The petition is disposed of. (E-5)

List of Cases Cited:

1. Roxann Sharma Vs Arun Sharma, (2015) 8
SCC 318

2. Aharya Baranwal & 3 ors.Vs St. of U.P. & 2
ors.(HABC No. 3921 of 2018)

3. Nil Ratan Kundu Vs Abhijit Kundu, (2008) 9
SCC 413

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a habeas corpus writ
petition effectively brought by Ram Kumar
Gupta in the name of his son Anmol
Shivhare, complaining that his minor son
aforesaid is in the unlawful custody of Smt.
Sanyogita @ Gunja, the minor's mother. He
prays that the minor be ordered to be
produced
before
this
Court
and
emancipated in the manner that his custody
be entrusted to Ram Kumar Gupta,
relieving the minor from the mother's
custody.

2. This petition was admitted to
hearing on 04.11.2020 and a rule nisi was
issued, ordering the minor to be produced
before this Court on 17.11.2020. The
minor was produced before this Court as
ordered. On the date of return, the minor's
father, Ram Kumar Gupta and the minor's
mother, Smt. Sanyogita @ Gunja also
appeared in compliance with the Court's
direction to that effect, carried in the
order dated 04.11.2020. The Court has
interacted
with
the
minor
Anmol
Shivhare, his mother Sanyogita @ Gunja
and the minor's father, Ram Kumar
Gupta.

3. Heard Sri R.K. Mishra, learned
counsel for the petitioner and Smt.
Sanyogita who appeared in person.

4.

Smt.
Sanyogita,
on
being
specifically asked, if she has instructed a
counsel to represent her, declined and
addressed the Court herself.

5. In answer to the rule nisi, no return
in the form of a counter affidavit has been
filed by or on behalf of Sanyogita @
Gunja, respondent no. 5. Thus, the facts
before the Court are those that figure in the
writ petition and the others the Court has
gathered from the parties while interacting
with them during hearing.

6. The facts are that Ram Kumar
Gupta
and
Sanyogita
were
married
according to Hindu rites on 8th December,
2009 at Kanpur Nagar. After marriage,
Sanyogita came over to her matrimonial
home and the two parties cohabited as man
and wife. In time, a son was born to the
parties. He was born on 07.08.2015. His
name is Anmol Shivhare. Ram Kumar
Gupta left his native place for Gurgaon,
Haryana in search of better prospects to
earn his livelihood. He landed in a private
job
there.
He
set
up
residence
at
Mohammadpur,
Sector
37,
Gurugram
(earlier called Gurgaon), Haryana. Once
established there, Gupta invited his wife
along with his young son to stay there. The
family moved together and settled at
Gurugram.
The
minor,
Anmol
was
admitted to a certain Divya Niketan Public
School, Mohammadpur Jharsa, Gurugram,
Haryana. He was enrolled in Class-1. The
family were living a peaceful life or so it
was thought by Gupta.

7. It is said in the writ petition by
Gupta that all of a sudden, on 03.10.2019,
Sanyogita went away somewhere taking
along the parties' minor son, Anmol. Gupta
lodged a first information report on
04.10.2019 at Police Station Sector 37,
558 INDIAN LAW REPORTS ALLAHABAD SERIES
Gurugram. It was registered as Case Crime
No. 295 of 2019, under Section 346 I.P.C.
The Police investigated the matter. They
found that Sanyogita along with the minor
son of parties was staying with one Balram
s/o Memwar Singh, a resident of Lahrauli
Gate, Police Station Baldeo, District
Mathura. The police from Gurugram came
over to Police Station Baldeo, District
Mathura and Sanyogita was called over.
Her statement was recorded under Section
161 Cr.P.C. She was, thereafter, produced
before the Magistrate so that her statement
under Section 164 Cr.P.C. could be
recorded. She said in both her statements
that she had married Balram and also
produced a marriage certificate dated
22.05.2018 from the Arya Samaj, Block
Khera, Firozabad. A copy of that certificate
is available on the record of this petition.
The police on the basis of Sanyogita's
statements under Section 161 and 164
Cr.P.C. submitted a final report to the
Magistrate concerned, proposing closure of
the investigation. Gupta, however, says that
Sanyogita's marriage to Balram is a nullity
because it is a second marriage in the
lifetime of her husband. Apparently, she
has not secured any kind of dissolution of
her marriage with Gupta. She has not
secured a decree of divorce or annulment.
Gupta says further that upon coming to
know of this claim of Sanyogita about a
second marriage, he went over to Balram's
house and attempted to meet his wife. He
particularly tried to meet his son, the minor
detenue Anmol. He moved an application
to the Station House Officer, Police Station
Baldeo, District Mathura asking the police
to recover his son and deliver him the
child's custody, but to no avail. Gupta says
that Sanyogita has married a second time,
and therefore, she has lost her right to
Anmol's custody. The minor's custody with
Sanyogita, in the home of a stranger, has
been dubbed as unlawful. Gupta says that
the minor's life in the stranger's home is at
risk. The minor has a bleak future. It is the
minor's welfare that he may be placed in
his father's custody, who is his natural
guardian, in preference to the mother, who
has walked out on her lawfully wedded
husband without a divorce, and staying in a
live-in relationship with a stranger. This
Court must remark here that these facts
stare in the face beckoning an answer as to
where the minor Anmol's welfare would be
best secured.

8. Mr. R.K. Mishra, learned counsel
appearing
for
Gupta,
submits
that
notwithstanding
the
preference
about
custody indicated by the proviso to Section
6(a) of the Hindu Guardianship and
Maintenance Act, 1956 (for short, ''the Act
of 1956') for the mother, in case of a minor
below the age of five years, the facts here
ought to persuade this Court to take a
different view. Mr. Mishra says that this is
not a case where the mother has secured a
divorce or an annulment of marriage in
accordance with law and honourably left
her husband's home to marry another man.
It is a case where the mother has acted in
an immoral way to walk out on her
husband, without telling anyone where she
intends to go. She has not secured an end to
her marriage with Gupta and has gone over
to live with another man, Balram under the
colour of a marriage solemnized with him.
The mother's marriage to Balram is void
under the law as her husband is alive and
her marriage to Gupta subsists. She is,
therefore, virtually in a live-in relationship
with a stranger. The minor's welfare in a
stranger's home is not at all secure. Rather,
the minor's life is in peril, if Balram were to
think that Anmol is an unwelcome presence
and an unwanted burden on his resources.
He submits that even if Balram has no
1 All. Anmol Shivhare Vs. State of U.P. & Ors.
559
criminal propensities so as to imperil the
minor's life, the lack of affection from the
bread winner of the home, where the minor
is living, would certainly cast a dark
shadow on the minor's future. The minor
requires not only food, shelter and clothing
but also an intent attention to his eduction -
both literary and moral. Sanyogita, apart
from the fact that she has no resources of
her own to provide for the minor, would be
under the perpetual influence of Balram,
with whom she stays. Balram and the
minor, being utter strangers, the very
sensitive and concerned grooming that a
young child requires would be a causality.
It is, therefore, submitted that in all these
circumstances, the minor ought to be
relieved from his mother's custody and
entrusted to his father.

9. In reply, the mother has said that
she dissociated herself with her first
husband, Gupta because he would torture
her over triflings. He was unkind to the
child also. She says that the child is young
and requires her care. She has all the
motherly affection for the child. She
submits that she can raise him well, taking
care of all his needs. She has emphasised
that the minor's welfare is absolutely secure
in her new home and her husband Balram
Chaudhary is a good man, who has all the
fatherly affection for Anmol. At this stage,
this
Court
must
remark
that
the
submissions on behalf of Sanyogita being
without assistance of legal counsel, the
Court undertook to discharge somewhat of
an inquisitorial role. The submissions from
the mother came through mostly during
interaction with parties. During the course
of interaction with the minor's mother, she
described
Balram
Chaudhary
as
her
husband and Gupta as her former husband.
She candidly acknowledged that Anmol
was Gupta's son. She also told the Court
that she has begotten another son of her
wedlock to Balram, as she has chosen to
describe her relationship. The other son is
an infant of five to six months. About
Gupta, she said that he would torture her
everyday over triflings. On being asked
how Gupta treated his son, Anmol, she
said: ''very badly'. She told the Court to
Gupta's face, that Anmol once had a burn
injury to his hand, but because of Gupta's
unkind attitude, the child had to be taken
for necessary medical aid and treatment by
subterfuge.
The
Court
put
specific
questions to Sanyogita about Gupta's
outlook towards his son, which were
answered by her in the terms indicated
hereinabove.

10. She told the Court that her present
husband earns his living by driving a Taxi.
She also said that he wholeheartedly agrees
to bear the minor's financial and other
responsibilities. The Court further inquired
whether the child was attending school. In
answer, Sanyogita said, ''Yes, but presently
he is not attending school on account of the
Covid-19 pandemic'. The Court inquired of
her about her educational qualifications, to
which she said that she had left her B.A.
Course incomplete.

11. The Court interacted with Gupta
in considerable detail. He told the Court
that he does service for an occupation with
the Kanpur Plastic Factory, which is
located at Dada Nagar, Kanpur. It is near
Panki. He earns a salary of Rs. 9,500/- per
mensem, overtime wages, apart. Upon the
Court asking him if he had remarried, he
answered in the negative. Upon the Court
further asking Gupta, if he intended to
remarry, he said that for the present, he has
not considered the matter. The Court then
inquired of Gupta if he could raise the
minor, considering that he is a very young
560 INDIAN LAW REPORTS ALLAHABAD SERIES
child, Gupta said that he would be able to
do that. The Court's impression of Gupta's
stand about raising the minor was that it
was
a
rather
reluctant
and hesitant
response. Gupta informs the Court that he
has done his graduation. It would be
apposite to extract verbatim, the relevant
questions put to Gupta and their answers
during interaction. These read:

Q. Aapka naam?

A. Ram Kumar Gupta.

Q. Aap kya karte hain?

A. Naukari Kanpur Plastic Factory me.
Kanpur, Dada Nagar me. Ye Panki ke paas
hai.

Q. Aapki kitni salary hai?

A. Rs. 9,500/-, over time alag se.

Q. Aapne doosri shadi ki hai?

A. Nahi.

Q. Aap dusari shadi karenge?

A. Abhi vichar nahi kiya.

Q. Aap bachche ko kaise palenge,
bachcha bahut chhota hai?

A. Paal lenge.

Q. Aap kitna padhe hai?

A. Graduation complete hai.

12. The Court interacted with the
minor, Anmol. He is a young child aged a
little over five years. The child on being
asked his name kept quite. He appears to be
lost deep in some thoughts. He did not
appear to be very attentive. Bearing in
mind the child's tender age, the Court
interacted with the child at close quarters
with a view to ascertain whether he was
comfortable in his mother's custody. This
Court attempted to elicit from the child in a
subtle manner, if there is any truth to the
mother's allegation about his father, Gupta
being unkind to him. The child hardly said
anything by word of mouth. Without
uttering a word, he had tears welling in his
eyes. He turned away and headed back to
his
mother,
without
answering
any
question. He appears to be attached to the
mother. Walking back to her, he embraced
his mother. The Court then drew the child's
attention to his father, who was present in
Court. The father attempted to touch the
child, to which he sharply reacted,
shunning the father's touch. At this
juncture, the Court again called the child
over and asked him, if he would like to go
back to his father. Again, he did not speak
anything. Instead, he nodded his head
vigorously in refusal. The father asked the
child to tell him who he was. The child
said: ''Koi Nahi'. This was the first word
spoken by him since he appeared in Court.
He spoke this word of refusal, when
beckoned by his father.

13. This Court may re-emphasise that
the child is young and it was certainly not
the endeavour of the Court to know his
intelligent preference about the choice of
his guardian. The Court wished to know,
again, as already said, if there was any truth
to Sanyogita's allegations about Gupta
being an unkind father. Again, whatever
the Court says is no condemnation of the
father or a perennial certification to the
mother to hold the minor's custody, till he
turns an adult. It is the Court's endeavour
for the present to find out where the minors
welfare would be best subserved.

14. It is by now well nigh settled that
though the Act of 1956 and the Guardian
and Wards Act, 1890 speak about the rights
of the natural guardian, their appointment
and declaration and also their rights to the
minor's custody, the decision about the
guardianship of a minor or his/her custody,
which could be distinct from guardianship,
is not so much about the guardian's right, as
about the minor's welfare. If there is one
principle
that
has
become
almost
1 All. Anmol Shivhare Vs. State of U.P. & Ors.
561
immutable in guardianship and custody
disputes, it is this: the welfare of the minor
is of paramount importance. A fortiorari
everything else is subordinated to that
consideration. The various injunctions
about guardianship and custody, carried in
different statutes and texts, embodying
personal laws of parties, have all to take a
back-seat and what rules is the principle
about the minors welfare being the
paramount consideration.

15. The legislative edict, carried in the
proviso to Section 6(a) of the Act of 1956,
is an expression of trust in the mother, that
up to the age of five years, ordinarily a
minor's interest would be better secured by
the mother. This trust expressed in the
mother is something that emanates from
human nature. Five years is not a statutory
cut off date after which the right, as it were,
gets divested from one and vested in the
other. The age mentioned in the proviso to
Section 6(a) is no calibrated formula. It
indicates a thought that young children are
presumed to be better cared for by the
mother, unless something is shown in the
circumstances to outweigh that precipitate
experience of mankind spread across eons.

16. In this connection, reference may
be made with great profit to the decision of
the Supreme Court in Roxann Sharma vs.
Arun Sharma, (2015) 8 SCC 318. It has
been held there:

"13. The HMG Act postulates that the
custody of an infant or a tender aged child
should be given to his/her mother unless
the father discloses cogent reasons that are
indicative of and presage the likelihood of
the welfare and interest of the child being
undermined or jeopardised if the custody is
retained by the mother. Section 6(a) of the
HMG Act, therefore, preserves the right of
the father to be the guardian of the property
of the minor child but not the guardian of
his person whilst the child is less than five
years old. It carves out the exception of
interim custody, in contradistinction of
guardianship, and then specifies that
custody should be given to the mother so
long as the child is below five years in age.
We must immediately clarify that this
section or for that matter any other
provision including those contained in the
G and W Act, does not disqualify the
mother to custody of the child even after
the latter's crossing the age of five years."

17. There is a very illuminating
reference about the mother's priceless role
in securing the minor's welfare to be found
in a decision rendered by Rajul Bhargava,
J. in Habeas Corpus Writ Petition No.
3921 of 2018, Aharya Baranwal and 3
others vs. State of U.P. and 2 others, in
the
order
dated
22.05.2019.
His
Lordship's reference to a passage from
Bailey on habeas corpus, deserves to be
noticed in that decision, about the context
here. In Aharya Baranwal (Supra), it was
held:

"21. Sometimes, a writ of habeas
corpus is sought for custody of a minor
child. In such cases also, the paramount
consideration which is required to be kept
in view by a writ-Court is `welfare of the
child'.

22. In Habeas Corpus, Vol. I, page
581, Bailey states;

"The reputation of the father may be
as stainless as crystal; he may not be
afflicted with the slightest mental, moral or
physical
disqualifications
from
superintending the general welfare of the
infant; the mother may have been separated
from him without the shadow of a pretence
of justification; and yet the interests of the
562 INDIAN LAW REPORTS ALLAHABAD SERIES
child may imperatively demand the denial
of the father's right and its continuance with
the
mother.
The
tender
age
and
precarious state of its health make the
vigilance of the mother indispensable to
its proper care; for, not doubting that
paternal anxiety would seek for and
obtain the best substitute which could be
procured yet every instinct of humanity
unerringly proclaims that no substitute
can supply the place of her whose
watchfulness over the sleeping cradle, or
waking moments of her offspring, is
prompted by deeper and holier feeling
than the most liberal allowance of
nurses' wages could possibly stimulate."

23. It is further observed that an
incidental aspect, which has a bearing on
the question, may also be adverted to. In
determining whether it will be for the best
interests of a child to grant its custody to
the father or mother, the Court may
properly consult the child, if it has
sufficient judgment. (Emphasis supplied)

18. It must be remarked that the rather
very vexed question about a child's custody
torn between parents, who have chosen to
part ways, has no answer to fit all
situations. Provisions of different statutes
and guidance in various authorities are but
guides to reach a just conclusion in a
particular case. What cannot be lost sight
of, as said earlier, is that the principle about
the welfare of the child being of paramount
consideration cannot be given a go by. In
this connection, reference may be made to
the remarks of their Lordships of the
Supreme Court in Nil Ratan Kundu vs.
Abhijit Kundu, (2008) 9 SCC 413. It has
been held in Nil Ratan Kundu (supra):

"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
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."

19. Considering the overall behaviour
of the minor towards his parents, this Court
feels that at this age, depriving the minor of
his mother's company, might have an
adverse impact on his overall development.
This, inturn would derogate from the
minor's welfare.

20. Here, this Court, on a careful
consideration of the matter, finds that the
minor, though above the age of five years,
is still a child of tender years. He may not
be an infant, who needs to be weaned away
from his mother, but he still needs the
tender care that the mother alone can
1 All. Anmol Shivhare Vs. State of U.P. & Ors.
563
provide. The fact that the mother has
walked away from her husband's home
without securing a divorce and entered into
a new relationship with Balram Chaudhary,
which
she
represents
and
ostensibly
believes to be a second marriage, may be
something that the law and the society
frown upon, but, in itself, is something not
so depraved or immoral as to deprive the
mother of her special place in the minor's
life. The mother indicated that she was
treated with cruelty by Gupta and that is
why she walked out on him. That is not this
Court's concern. It is this Court's concern,
however, to determine whether the minor
would be safe and his welfare ensured in
his mother's new home. The way the
minor's
mother
has
detailed
her
circumstances
in
Balram
Chaudhary's
home, this Court feels that the minor, for
the present, is well adapted into his
mother's new family. In that family there is
a new member, who is a consanguine
brother to the minor. Sanyogita's younger
son is begotten of Balram Chaudhary. In
the
opinion
of
this
Court,
Balram
Chaudhary, Sanyogita and the two children,
who are half brothers, are a family with
reasonably good bonds, that can be trusted
to secure the minor's welfare. On the other
hand, Gupta is engaged in earning his
livelihood and back home there may not be
anyone, even half as able to take care of the
minor at this young age as his natural
mother. Sanyogita has also indicated that
she is all inclined to raise the minor and
ensure good education to him. By contrast,
Gupta's reaction to the proposal of raising a
young child was rather reluctant. He also
said that for the present he has not
considered a second marriage. If he does in
future, of course, subject to a divorce, the
minor might have a step mother. That
might be more detrimental to the minor's
welfare than a stepfather, who goes away to
work. It is a prospect which has not yet
come by. Nonetheless, it is a prospect that
has to be borne in mind. Thus, so far as the
dominant and substantial part of the minor's
custody and care are concerned, this Court
is of opinion that these would be better
secured
in
the
mother's
hands,
in
comparison to the father. At the same time,
the minor cannot be deprived of the
company of his father.

21. The circumstances in which Gupta
and Sanyogita are placed are not very
conventional. Therefore, ensuring visitation
rights to the father has to be ensured
bearing in mind the subtler aspects of
human behaviour. The rights of the minor
to his father's company have to be ensured
at all costs.

22. This Court is, therefore, of
opinion that Sanyogita @ Gunja would be
obliged to take the minor to his father's
home at Kanpur once in two months, on
any Sunday of the month. The child will
stay with his father from 10:00 am to 5:00
pm. During this time, Sanyogita would
have to stay close by, if she is not
comfortable staying at Gupta's home.
During this interaction, the father shall
extend all courtesy to Sanyogita, and
Sanyogita, likewise, will facilitate the
meeting between the minor and his father.
In case, during the period of stay, the minor
needs his mother, Gupta will be free to
inform her over cellphone and the mother
shall take care of the minor's requirements.
Reasonable expenses for the onward and
return journey by Sanyogita and the minor
shall be borne by Gupta, payable at the
time of each scheduled visit.

23. It is in these terms that the rule
nisi issued in this case is disposed of.
There shall be no order as to costs.
564 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)01ILR A564
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.01.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Habeas Corpus Writ Petition No. 16907 of 2020

Smt. Safiya Sultana & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Adarsh Kumar Maurya, Archana Singh

Counsel for the Respondents:
----

A. Constitution of India,1950 - Article
226
-
unlawful
custody
of
dentenu/daughter
by
father-
she
converted
into
Hindu
religion
and
married to her husband who Belongs to
Hindu religion-both appeared before
the
court-her
father
accepted
her
decision
as
she
is
adult-marriage
solemnized under Special Marriage Act,
1954-the said Act requires a 30 days
notice to be published and invite
objections from the public at largesuch notice would be an invasion in
privacy and violative of fundamental
rights-such notice shall be optional-if
the party intends it can make a request
to the Marriage Officer to publish or
not to publish a notice. (Para 1 to 49)

B. The law would be assessed not with
reference to its object but on the basis
of
its
effect
and
impact
on
the
fundamental rights. The mere fact that
the law provides for the deprivation of
life or personal liberty is not sufficient
to
conclude
its
validity
and
the
procedure.
The
quality
of
reasonableness does not attach only to
the content of the procedure which the
law
prescribes
with
reference
to
Article 21 but to the content of the law
itself. (Para 22 to 44)

The petition is disposed of. (E-5)

List of Cases Cited:

1. Shakti Vahini Vs U.O.I. & ors.(2018) 7
SCC 192

2. Satyawati Sharma Vs U.O.I. (2008) 5 SCC
287

3. Kashmir Singh Vs U.O.I.,(2008) 7 SCC
259

4. Lata Singh Vs St. of U.P. & anr.,(2006) 5
SCC 475

5. Arumugam Servai Vs St. of T.N.,(2011) 6
SCC 405

6.
Bhagwan
Dass
Vs
St.
(NCT
of
Delhi),(2011) 6 SCC 396

7. Vikas Yadav Vs St. of U.P. & anr.,(2016)
9 SCC 541

8. Asha Ranjan Vs St. of Bih.,(2017) 4 SCC
397

9.
Shafin
Jahan
Vs
Asokan
K.M.
&
ors.,(2018) 16 SCC 368

10. Justice K.S. Puttaswamy(Retd.) & anr.
Vs U.O.I. & ors.,(2017) 10 SCC 1

11. A.K. Gopalan Vs St. of Madras,(1950)
AIR SC 27

12. Kharak Singh Vs St. of U.P.,(1963) AIR
SC 1295

13. Maneka Gandhi Vs U.O.I.,(1978) 1 SCC
248

14. M.P. Sharma Vs Satish Chandra,(1954)
AIR SC 300

15.
Rustom
Cavasjee
Cooper
Vs
U.O.I.,(1970) 1 SCC 248