# Awanish Pandey & Anr v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 820
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-27
- **Case number:** Habeas Corpus Writ Petition No. 1057 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awanish-pandey-anr-v-state-of-u-p-ors-46619
- **Pages:** 3

## Headnote

Civil Law - Custody of minor - Constitution of
India, Art. 226 - Habeas corpus writ petition -
pregorative writ of habeas corpus, is in the
nature of extraordinary remedy, which should
be used only when it can be held that the
custody of the minor is illegal or unlawful -
court, exercising 'parens patriae' jurisdiction,
must give due weight age to the moral values
and the character of the proposed guardianpendency of a criminal case, wherein the father
has been charged of causing the death of the
minor's mother, is a relevant factor required to
be considered before an appropriate order
could be passed (Para 8, 10 )

Petition for custody of minor child sought by father
from maternal grandfather - Father accused in
pending criminal case u/s 498 & 304 I.P.C. & charged
of causing the death of a minor's mother - Petitioner
father not been able to point out as to how, the
custody of the minor with his maternal grandfather
can be said to be illegal or unlawful so as to persuade
this Court to exercise its extraordinary prerogative
jurisdiction for issuing a writ of habeas corpus - Not
disputed that any rights with regard to guardianship
or custody are to be agitated before appropriate
forum (Para 11)

Dismissed. (E-5)

List of Cases cited:

## Text

820 INDIAN LAW REPORTS ALLAHABAD SERIES
above, this habeas corpus petition stands
dismissed.
----------
(2021)11ILR A820
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1057 of 2019

Awanish Pandey & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Mani Tripathi, Sri Adeel Ahmad Khan,
Sri Prem Narain Singh, Sri Ravi Yadav, Sri Anil
Kumar Srivastava

Counsel for the Respondents:
A.G.A., Anupama Tripathi, Sri Rakesh Kumar
Tripathi

Civil Law - Custody of minor - Constitution of
India, Art. 226 - Habeas corpus writ petition -
pregorative writ of habeas corpus, is in the
nature of extraordinary remedy, which should
be used only when it can be held that the
custody of the minor is illegal or unlawful -
court, exercising 'parens patriae' jurisdiction,
must give due weight age to the moral values
and the character of the proposed guardianpendency of a criminal case, wherein the father
has been charged of causing the death of the
minor's mother, is a relevant factor required to
be considered before an appropriate order
could be passed (Para 8, 10 )

Petition for custody of minor child sought by father
from maternal grandfather - Father accused in
pending criminal case u/s 498 & 304 I.P.C. & charged
of causing the death of a minor's mother - Petitioner
father not been able to point out as to how, the
custody of the minor with his maternal grandfather
can be said to be illegal or unlawful so as to persuade
this Court to exercise its extraordinary prerogative
jurisdiction for issuing a writ of habeas corpus - Not
disputed that any rights with regard to guardianship
or custody are to be agitated before appropriate
forum (Para 11)

Dismissed. (E-5)

List of Cases cited:

1. Nil Ratan Kundu & anr. Vs Abhijit Kundu (2008) 9
SCC 413

2. Kirtikumar Maheshankar Joshi Vs Pradipkumar
Karunashanker Joshi (1992) 3 SCC 573

3. Rachit Pandey (minor) & anr. Vs St. of U.P. & 3
ors. 2021 (2) ADJ 320

4. Nithya Anand Raghvan Vs State (NCT of Delhi) &
anr. (2017) 8 SCC 454

5. Sayed Saleemuddin Vs Dr. Rukhsana & ors. (2001)
5 SCC 247

6. Tejaswini Gaud & ors. Vs. Shekhar Jagdish Prasad
Tewari & ors. (2019) 7 SCC 42

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Anil Kumar Srivastava,
learned Senior Counsel assisted by Sri Prem
Narain Singh, learned counsel for the petitioners
and Sri Arvind Kumar, learned Additional
Government Advocate appearing for the Staterespondents. No one has appeared for the
respondent no. 4, though the names of counsel
are shown in the list.

2. The present petition for a writ of habeas
corpus has been filed seeking custody of the
petitioner n. 2, corpus, stated to be a minor of
age about five years and ten months, by the
petitioner no. 1 who asserts to be his father.

3. The facts as stated in the writ petition
indicate that the petitioner no. 2 was born in the
month of January, 2014 and on 11.05.2015, the
11 All. Awanish Pandey & Anr. Vs. State of U.P. & Ors.
821
wife of the petitioner no. 1 i.e. the mother of the
corpus, is stated to have committed suicide at the
petitioner's home and thereafter an FIR was
lodged against the petitioner no. 1 and other
family members, registered as Case Crime No.
149 of 2015 under Section 498-A, 304-B IPC
and 3/4 D.P.Act, Police Station Bahariya,
District Prayagraj and the petitioner no. 1 was
sent to jail on 17.05.2015.

4. It has further been stated that the
respondent no. 4 filed a Habeas Corpus Writ
Petition No. 45207 of 2015 (Om Prakash
Mishra and another Vs. State of U.P. and
others) and this Court, upon taking notice of
the fact that the father of the corpus and other
family members were in jail, passed an order
dated 22.09.2015 granting custody of the
minor child to the maternal grand-father, who
is the respondent no.4 in the present case. The
habeas corpus petition was subsequently
dismissed as infructuous in terms of

5. Pleadings have been exchanged.

6. Learned Additional Government
Advocate has pointed out that a copy of the
First Information Report, which has been filed
as annexure 1 to the writ petition, indicates
that the same was lodged on 12.05.2015 under
Sections 498-A, 304-B IPC and Section 3/4 of
the Dowry Prohibition Act, 1961. In the said
First Information Report, the petitioner no. 1
herein, is named as one of the accused. It is
submitted that the First Information Report is
in respect of an incident relating to the death
of the wife of the petitioner no. 1 i.e. mother
of the corpus, whose custody is being sought.

7. Learned Additional Government
Advocate submits that petitioner no. 1 being
the principal accused in the pending criminal
case, the prayer of the petitioner no. 1 seeking
custody of the minor child may be detrimental
to his interest.

8. In somewhat similar set of facts, in the
case of Nil Ratan Kundu and another vs.
Abhijit Kundu1, where the custody of a minor
was sought in the background of the pendency
of a criminal case under Sections 498 and 304
I.P.C. against the father charging him of
causing the death of a minor's mother, it was
held that the paramount consideration in such
matters would be the welfare of the child, and
the
court,
exercising
'parens
patriae'
jurisdiction, must give due weightage to a
child's ordinary comfort, contentment, health,
education,
intellectual
development
and
favourable surroundings as well as physical
comfort and moral values and the character of
the proposed guardian is also required to be
considered. It was held that the pendency of a
criminal case, wherein the father has been
charged of causing the death of the minor's
mother, was a relevant factor required to be
considered before an appropriate order could
be passed. It was held as follows :-

"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 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 wellbeing 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
822 INDIAN LAW REPORTS ALLAHABAD SERIES
say, even more important, essential and
indispensable considerations...

xxx

63. In our considered opinion, on the facts and in
the circumstances of the case, both the courts were
duty-bound to consider the allegations against the
respondent herein and pendency of criminal case
for an offence punishable under Section 498-A
IPC. One of the matters which is required to be
considered by a court of law is the "character" of
the proposed guardian. In Kirtikumar, this Court,
almost in similar circumstances where the father
was facing the charge under Section 498-A IPC,
did not grant custody of two minor children to the
father and allowed them to remain with maternal
uncle.

64. Thus, a complaint against the father
alleging and attributing the death of mother, and a
case under Section 498-A IPC is indeed a relevant
factor and a court of law must address the said
circumstance while deciding the custody of the
minor in favour of such a person."

9. In an earlier decision in the case of
Kirtikumar
Maheshankar
Joshi
vs.
Pradipkumar Karunashanker Joshi2, where in
almost similar circumstances the father was facing
a charge under Section 498-A I.P.C., it was held
that though the father being a natural guardian, has
a preferential right to the custody of the children,
but in the facts and circumstances of the case, it
would not be in the interest of children to hand
over their custody to the father.

10. In a recent decision in Rachit Pandey
(minor) and another vs. State of U.P. and 3
others3 this Court after referring to the
authoritative pronouncements in the case of
Nithya Anand Raghvan vs. State (NCT of
Delhi) and another4, Sayed Saleemuddin vs.
Dr. Rukhsana and others5 and Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad Tewari
and others6, has held that in an application
seeking a writ of habeas corpus for custody of a
minor child, the principal consideration for the
Court would be to ascertain whether the custody of
the child can be said to be unlawful and illegal and
whether the welfare of the child requires that the
present custody should be changed and the child
should be handed over in the care and custody of
someone else other than in whose custody the
child presently is. It was held that the pregorative
writ of habeas corpus, is in the nature of
extraordinary remedy, which may not be used to
examine the question of custody of a child except
where in the circumstances of a particular case, it
can be held that the custody of the minor is illegal
or unlawful.

11. Learned Senior Counsel appearing for
the petitioners has not been able to point out as to
how, in the facts and circumstances of the present
case, the custody of the petitioner no. 2 with his
maternal grand- father can be said to be illegal or
unlawful so as to pursuade this Court to exercise
its extraordinary prerogative jurisdiction for
issuing a writ of habeas corpus. He has also not
disputed
that
any
rights
with
regard
to
guardianship or custody are to be agitated before
the appropriate forum.

12. The habeas corpus petition stands
dismissed accordingly.
----------
(2021)11ILR A822
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Habeas Corpus Writ Petition No. 11132 of 2021

Sonu @ Mohd. Ishtiyaq ...Petitioner
Versus
U.O.I.& Ors. ...Respondents