# Ayra Khan & Anr v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 2513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-28
- **Case number:** Habeas Corpus Writ Petition No. 797 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayra-khan-anr-v-state-of-u-p-ors-52085
- **Pages:** 5

## Headnote

Law
-
Guardians and Wards Act, 1890-
Section
17-
Mulla, Principles of Mahomedan Law, 22nd
Edition- Chapter XVIII - A writ of habeas
corpus is prerogative process for securing
the liberty of the subject by affording
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 would
have to be treated as equivalent to illegal
detention for the purpose of granting a
writ directing custody of the minor child.
(Para 10)

In a petition seeking issuance of a writ of habeas
corpus relating to the custody of a minor child,
the principle duty of the Court would be to
ascertain whether the custody of the child is
unlawful or illegal and whether the welfare of
the child requires that the present custody
should be changed and the child be handed over
to the care and custody of some other person.
In doing so, the paramount consideration would
undoubtedly be the welfare of the child and the
role of the High Court in examining such cases
would have to be on the touchstone of principles
of parens patriae jurisdiction. (Para 16)

Habeas corpus proceedings would not ordinarily
lie to justify or examine the legality of the
custody of the minor child, and the question in
this regard would have to be addressed by the
Court in exercise of its discretionary jurisdiction.
The prerogative writ of habeas corpus, is in the
nature of an extraordinary remedy, and is to be
issued
taking
into
consideration,
the
circumstances of a particular case. (Para 17)

In child custody matters, the remedy
ordinarily lies under the statutory law, or
the personal law, as applicable in the facts
of the case; however, in cases which
justify the exercise of the extraordinary
discretionary jurisdiction u/Article 226, a
writ of habeas corpus would be issued
where
it
is
demonstrated
that
the
detention of minor child, is illegal or
without any authority of law. (Para 18)

In the present case, parties have not disputed
the legal position that in the case of a female
child of 2-1/2 years, her biological mother would
be legally entitled to her custody as per the
personal law. The detention of the petitioner no.
1
(corpus)
by
the
respondent
no.
5
(grandmother), in the said circumstances,
cannot, prima facie, be legally supported. (Para
22)

In the entirety of the facts and circumstances of
the case, it would be in the paramount interest
of the petitioner no. 1 (corpus) that the interim
arrangement, as per terms of the previous order
dated 16.04.2024, permitting the petitioner-
corpus to go along with the petitioner no. 2, her
biological mother, be continued. (Para 23)

B. The provisions of the personal law are
to be applied consistently with the
provisions of the GWA, and insofar as the
question of custody is concerned, the
rights of parties in the present case, are to
be governed by the personal law. Section 17
of the GWA relates to matters to be considered
by the court in appointing a guardian, and in
terms thereof it is provided that the court while
deciding the question of guardianship of a
minor, shall, as far as possible, do so
2514 INDIAN LAW REPORTS ALLAHABAD SERIES
consistently with the law to which the minor is
subject, keeping in view the welfare of a minor.
(Para 11)

The matters relating to 'Guardianship of Person
and Property' are provided under Chapter XVIII
of Principles of Mahomedan Law and Part-A
thereof pertains to 'Appointment of Guardians'.
In terms of Section 349, all applications for the
appointment of a guardian of the person or
property or both of a minor, are to be made
under the GWA. (Para 12)

Section 351 of Principles of Mahomedan Law,
which is in terms of Section 17 of the GWA,
imposes a duty upon the court in appointing
guardian to make the appointment consistently
with the law to which the minor is subject,
keeping

## Text

5 All. Ayra Khan & Anr. Vs. State of U.P. & Ors.
2513
(2024) 5 ILRA 2513
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

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

Habeas Corpus Writ Petition No. 797 of 2023

Ayra Khan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Akhilesh Kumar Tiwari

Counsel for the Respondent:
G.A.

A.
Family
Law
-
Guardians and Wards Act, 1890-
Section
17-
Mulla, Principles of Mahomedan Law, 22nd
Edition- Chapter XVIII - A writ of habeas
corpus is prerogative process for securing
the liberty of the subject by affording
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 would
have to be treated as equivalent to illegal
detention for the purpose of granting a
writ directing custody of the minor child.
(Para 10)

In a petition seeking issuance of a writ of habeas
corpus relating to the custody of a minor child,
the principle duty of the Court would be to
ascertain whether the custody of the child is
unlawful or illegal and whether the welfare of
the child requires that the present custody
should be changed and the child be handed over
to the care and custody of some other person.
In doing so, the paramount consideration would
undoubtedly be the welfare of the child and the
role of the High Court in examining such cases
would have to be on the touchstone of principles
of parens patriae jurisdiction. (Para 16)

Habeas corpus proceedings would not ordinarily
lie to justify or examine the legality of the
custody of the minor child, and the question in
this regard would have to be addressed by the
Court in exercise of its discretionary jurisdiction.
The prerogative writ of habeas corpus, is in the
nature of an extraordinary remedy, and is to be
issued
taking
into
consideration,
the
circumstances of a particular case. (Para 17)

In child custody matters, the remedy
ordinarily lies under the statutory law, or
the personal law, as applicable in the facts
of the case; however, in cases which
justify the exercise of the extraordinary
discretionary jurisdiction u/Article 226, a
writ of habeas corpus would be issued
where
it
is
demonstrated
that
the
detention of minor child, is illegal or
without any authority of law. (Para 18)

In the present case, parties have not disputed
the legal position that in the case of a female
child of 2-1/2 years, her biological mother would
be legally entitled to her custody as per the
personal law. The detention of the petitioner no.
1
(corpus)
by
the
respondent
no.
5
(grandmother), in the said circumstances,
cannot, prima facie, be legally supported. (Para
22)

In the entirety of the facts and circumstances of
the case, it would be in the paramount interest
of the petitioner no. 1 (corpus) that the interim
arrangement, as per terms of the previous order
dated 16.04.2024, permitting the petitioner-
corpus to go along with the petitioner no. 2, her
biological mother, be continued. (Para 23)

B. The provisions of the personal law are
to be applied consistently with the
provisions of the GWA, and insofar as the
question of custody is concerned, the
rights of parties in the present case, are to
be governed by the personal law. Section 17
of the GWA relates to matters to be considered
by the court in appointing a guardian, and in
terms thereof it is provided that the court while
deciding the question of guardianship of a
minor, shall, as far as possible, do so
2514 INDIAN LAW REPORTS ALLAHABAD SERIES
consistently with the law to which the minor is
subject, keeping in view the welfare of a minor.
(Para 11)

The matters relating to 'Guardianship of Person
and Property' are provided under Chapter XVIII
of Principles of Mahomedan Law and Part-A
thereof pertains to 'Appointment of Guardians'.
In terms of Section 349, all applications for the
appointment of a guardian of the person or
property or both of a minor, are to be made
under the GWA. (Para 12)

Section 351 of Principles of Mahomedan Law,
which is in terms of Section 17 of the GWA,
imposes a duty upon the court in appointing
guardian to make the appointment consistently
with the law to which the minor is subject,
keeping in view the welfare of the minor. (Para
13)

The subject matter relating to 'Guardianship of
a Person of a Minor' is dealt with under Part-B of
Chapter XVIII of Principles of Mahomedan Law,
and Sections 352 thereof, which relates to the
right of mother to custody of infant children
states that the mother is entitled to custody
(hizanat) of her male child until he has
completed the age of seven years. (Para 14, 15)

Petition disposed of. (E-4)

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

1. Heard Sri Akhilesh Kumar
Tiwari, learned counsel for the petitioners,
Ms.
Harshita
Rani,
learned A.G.A.
appearing for the State-respondents and Sri
Faizan Siddiqui, learned counsel appearing
for the respondent nos. 4 and 5.

2. The present petition has been
filed with the assertion that the petitioner
no. 2, mother of the petitioner no. 1
(corpus), was ousted from her matrimonial
home, on 08.09.2023, by her husband,
respondent no. 4, and the petitioner no. 1
(corpus), minor daughter, who at that point
of time was less than two years, was
detained.

3. It has been further asserted that
the respondent no. 4 had thereafter gone out
of the country and the petitioner no. 1
(corpus) was being illegally detained by the
respondent No. 5, mother-in-law of the
petitioner no. 2.

4. Pursuant to the rule nisi issued
earlier, the petitioner no. 1 (corpus), was
produced before the Court, on the previous
date
i.e.
16.04.2024,
by
the
State
authorities, along with the respondent no. 5.

5. Taking into consideration the
age of the petitioner-corpus and that the
petitioner no. 2 being her biological mother
would be legally entitled to have her
custody, by way of an interim arrangement,
and as agreed by counsel for the parties, the
petitioner no. 1 (corpus) was permitted to
go along with the petitioner no. 2.

6. Today, upon the case case being
taken up, it has been pointed out that the
petitioner no. 2 is present in Court, along
with the petitioner no. 1 (corpus).

7. The petitioner no. 1 (corpus),
and the petitioner no. 2 have been identified
Sri Akhilesh Kumar Tiwari, learned
counsel.

8. Sri Faizan Siddiqui, learned
counsel appearing for the respondent nos. 4
and 5 has stated that the respondent no. 4 is
out of the country, and that there are no
instructions as to when he would return.

9. Learned A.G.A., on the basis of
an enquiry made from the petitioner no. 2,
in Court, submits that she has stated that the
petitioner no. 1 (corpus) is being taken care
5 All. Ayra Khan & Anr. Vs. State of U.P. & Ors.
2515
of by her, since the previous date, when the
corpus was permitted to go along with her
in terms of the order passed by the Court by
way of an interim arrangement. She has
further stated that she has sufficient means
to take good care of her minor child,
petitioner no. 1 (corpus).

10. A writ of habeas corpus is
prerogative process for securing the liberty
of the subject by affording 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 would have to be treated as
equivalent to illegal detention for the
purpose of granting a writ directing custody
of the minor child.

11. The law relating to guardians
and wards is governed in terms of the
Guardians and Wards Act, 18901. Section
17 of the GWA relates to matters to be
considered by the court in appointing a
guardian, and in terms thereof it is provided
that the court while deciding the question of
guardianship of a minor, shall, as far as
possible, do so consistently with the law to
which the minor is subject, keeping in view
the welfare of a minor. Thus, the provisions
of the personal law are to be applied
consistently with the provisions of the
GWA, and insofar as the question of
custody is concerned, the rights of parties
in the present case, are to be governed by
the personal law.

12. The matters relating to
'Guardianship of Person and Property' are
provided under Chapter XVIII of Principles
of Mahomedan Law2 and Part-A thereof
pertains to 'Appointment of Guardians'. In
terms of Section 349, all applications for
the appointment of a guardian of the person
or property or both of a minor, are to be
made under the GWA.

13. Further, Section 351 of
Principles of Mahomedan Law, which is in
terms of Section 17 of the GWA, imposes a
duty upon the court in appointing guardian
to make the appointment consistently with
the law to which the minor is subject,
keeping in view the welfare of the minor.

14. The subject matter relating to
'Guardianship of a Person of a Minor' is
dealt with under Part-B of Chapter XVIII of
Principles of Mahomedan Law, and
Sections 352 thereof, which relates to the
right of mother to custody of infant
children, is set out hereinbelow:-

"352. Right of mother to custody
of infant children.-The mother is entitled
to the custody (hizanat) of her male child
until he has completed the age of seven
years and of her female child until she has
attained puberty. The right continues
though she is divorced by the father of the
child (e), unless she marries a second
husband in which case the custody belongs
to the father (f)."

15. It would be seen that in terms
of Section 352, abovementioned, the
mother is entitled to custody (hizanat) of
her male child until he has completed the
age of seven years.

16. In a petition seeking issuance
of a writ of habeas corpus relating to the
custody of a minor child, the principle duty
of the Court would be to ascertain whether
the custody of the child is unlawful or
illegal and whether the welfare of the child
requires that the present custody should be
2516 INDIAN LAW REPORTS ALLAHABAD SERIES
changed and the child be handed over to the
care and custody of some other person. In
doing so, the paramount consideration
would undoubtedly be the welfare of the
child and the role of the High Court in
examining such cases would have to be on
the touchstone of principles of parens
patriae jurisdiction.

17. Habeas corpus proceedings
would not ordinarily lie to justify or
examine the legality of the custody of the
minor child, and the question in this regard
would have to be addressed by the Court in
exercise of its discretionary jurisdiction.
The prerogative writ of habeas corpus, is in
the nature of an extraordinary remedy, and
is to be issued taking into consideration, the
circumstances of a particular case.

18. In child custody matters, the
remedy ordinarily lies under the statutory
law, or the personal law, as applicable in the
facts of the case; however, in cases which
justify the exercise of the extraordinary
discretionary jurisdiction under Article
226, a writ of habeas corpus would be
issued where it is demonstrated that the
detention of minor child, is illegal or
without any authority of law.

19. The facts regarding which
there is no dispute, and which were noticed
in the previous order, are that the petitioner
no. 1 (corpus) is a minor girl of age about
2-1/2 years. The respondent no. 4, father of
the petitioner no. 1 (corpus) is presently
living abroad, where he is stated to be
having a job, and there is no indication of
the time frame within which he is to return.

20. The petitioner no. 2 is stated
to have left her matrimonial home due to
some differences with her husband and
her in-laws, and the petitioner-corpus was
stated to be with the respondent no. 5, her
grand mother, an elderly lady.

21. Counsel for the parties agree
that looking to the age of the petitionercorpus, it may be difficult to ascertain her
wishes, and the questions with regard to
her custodial rights would have to be
examined on the principles of parens
patriae
jurisdiction
by
seeking
to
ascertain what would be in the best
interest of the corpus.

22. Counsel for the parties have
not disputed the legal position that in the
case of a female child of 2-1/2 years, her
biological mother would be legally
entitled to her custody as per the personal
law. The detention of the petitioner no. 1
(corpus) by the respondent no. 5, in the
said circumstances, cannot, prima facie,
be legally supported.

23. It has, also, not been disputed
by counsel for the parties that in the
entirety of the facts and circumstances of
the case, it would be in the paramount
interest of the petitioner no. 1 (corpus)
that the interim arrangement, as per terms
of the previous order dated 16.04.2024,
permitting the petitioner-corpus to go
along with the petitioner no. 2, her
biological mother, be continued.

24. Having regard to the aforesaid,
the rule issued earlier, is made absolute.

25. The arrangement, in terms of
which the petitioner no. 1 (corpus) was
permitted to go along with the petitioner no.
2, her mother, would continue.

26. Counsel for the parties have
stated that the parties would continue to
explore the possibilities of reconciliation.
5 All. Faizan Khan Vs. Adhikshak Janpad/Kendriya Karagar, Bareilly & Ors.
2517
27. It is made clear that in case of
any dispute with regard to guardianship or
custody, or any claim with regard to
visitation rights, it would be open to the
parties concerned to take recourse to
appropriate statutory remedy.

28. The petition stands disposed
of.
----------
(2024) 5 ILRA 2517
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2024 &
20.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 271 of 2024

Faizan Khan ...Petitioner
Versus
Adhikshak
Janpad/Kendriya
Karagar,
Bareilly & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Daya Shankar
Mishra (Sr. Advocate)

Counsel for the Respondent:
A.S.G.I., Sri Alok Ranjan Mishra, G.A.

A. Criminal Law - Detention - The
Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act,
1988 - Section 3(1) - The competent
authority under COFEPOSA and PIT NDPS
Act
is
required
to
consider
the
representation submitted by the detenue
which is an additional right to his right to
make
representation
to
the
State
Government and Central Government.
(Para 15)

The detention of the petitioner is based on two
F.I.Rs. i.e. C.C. No. 65 of 2021 and 1091 of
2021. Admittedly, the petitioner after facing full
length trial stand acquitted in first F.I.R. i.e. C.C.
No. 65 of 2021 vide judgment dated 09.06.2023
passed by Special Judge (NDPS Act)/Additional
Sessions Judge, Bareilly and, therefore, this very
base of this F.I.R. in both impugned orders
stand vitiated. (Para 17A)

(1) In the impugned rejection order dated
12.3.2024, no reasons has been assigned for
dealing with the judgment of acquittal of
petitioner. On the face of it, this order is totally
non speaking order as in one line it has been
stated that the representation of the petitioner
stand rejected. Even nothing has been stated in
this order that any opportunity of hearing was
granted to the petitioner before passing of this
order.

(2) With regard to second F.I.R. i.e. Case Crime
No. 1091 of 2021, it is admitted case of the
prosecution that the petitioner was not named
in the F.I.R. and his name surfaced on the
disclosure of an accused who was arrested at
the spot. Therefore, the petitioner was neither
arrested at the spot by the police nor any
recovery of narcotic drugs and psychotropic
substances was effected from him. In the
absence of the Court verdict holding him guilty
of offence, impugned order of detention is very
harsh.

B. Where the ground of detention were
vague or based on stale event or there is
delay in decision on the representation,
the detention order can be set aside. (Para
16)

Fact which needs consideration is that Case
Crime No. 65/2021 where the petitioner stands
acquitted relates to 2021 and second and third
F.I.R. also pertains to same year within short
span of time. The petitioner surrendered on
12.1.2022 in F.I.R. No. 1091 of 2021 and in the
intervening period he has not committed any
new offence under the NDPS Act. Even the third
F.I.R. i.e. Case Crime No. 28 of 2021 26.01.2021
which though not relied upon in the impugned
orders is also of same District i.e. Bareilly.
Therefore, from 2021 till 12th January 2024
when the detention period of the petitioner
started, despite gap of three years, there was no
fresh F.I.R. registered against the petitioners
and this fact was not recorded in the rejection