# Bishantak & Ors v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-06
- **Case number:** Habeas Corpus Writ Petition No. 487 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bishantak-ors-v-state-of-u-p-ors-45221
- **Pages:** 3

## Headnote

(A) Criminal Law - Hindu Minority and
Guardianship Act, 1956 - Section 6 -
natural guardian of a hindu minor -
Section 6(a) - in the case of a boy or an
unmarried girl-the father, and after him
,the mother: provided that the custody of
a minor who has not completed the age of
five years shall ordinarily be with the
mother, Section 13 - Welfare of minor to
be paramount consideration - Guardians
and Wards Act,1890 - Section 17-matter
to
be
considered
by
the
court
in
appointing guardian , Section 25 - Title
and guardian to custody of ward - law of
guardianship - welfare of the minor is of
paramount consideration.

Custody of minor child - Both the mother and
father are natural guardians - till he is a minor,
under Section 6 (a) of the Hindu Minority and
Guardianship, Act - Their rights are equal as
natural guardians - Court has spoken to the
minors who are not only of intelligent years but
teenagers, not far away from majority (Para5,7)

HELD:- This Court has to see where the welfare
of the minor is best secured. The stand of the
minors does not leave this Court in any doubt
that their welfare would be best served with
their mother. In fact, it would be a disservice to
the minors, if they were asked to stay with the
father. (Para-8)

Habeas corpus petition dismissed. (E-7)

List of Cases Cited:-
328 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Bishantak & Ors. Vs. State of U.P. & Ors.
327
for the present or at a later stage that he has
a better right to the minor's custody, it
would always be open to him to institute
appropriate proceedings before a Court of
competent jurisdiction under the Guardians
and Wards Act, 1890 as may be advised. In
case, he seeks custody of the minor by
moving
the
Court
of
competent
jurisdiction, nothing said here would affect
the rights of either party to establish their
case on merits. The Court concerned shall
be free to decide the issue of custody of the
minor on the basis of evidence led and in
accordance with law.

22. In the result, the rule nisi issued
cannot be made absolute. It is discharged.
The petition stands dismissed.

23. The second petitioner, Abdul
Azeem @ Mohd. Azeem, the minor's father
shall have visitation rights in terms that
Smt. Umme Alisha d/o Abid Hussain and
the minor's grandfather, Abid Hussain shall
permit the father, Abdul Azeem to meet the
minor Aisha once a month on the second
Tuesday between 10:00 a.m. to 01:00 p.m.
During these visits, the 4th and the 5th
respondent shall extend due courtesy to the
father, Abdul Azeem and shall facilitate the
meeting.

24. Let this order be communicated to
the learned District Judge, Kanpur Nagar
and the S.S.P., Kanpur Nagar by the Joint
Registrar (compliance).
----------

(2020)10ILR A327
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2020

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

Habeas Corpus Writ Petition No. 487 of 2020

Bishantak & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ranjeet Kumar Mishra, Sri Rajesh
Kumar Singh

Counsel for the Respondents:
A.G.A., Sri Devesh Mishra

(A) Criminal Law - Hindu Minority and
Guardianship Act, 1956 - Section 6 -
natural guardian of a hindu minor -
Section 6(a) - in the case of a boy or an
unmarried girl-the father, and after him
,the mother: provided that the custody of
a minor who has not completed the age of
five years shall ordinarily be with the
mother, Section 13 - Welfare of minor to
be paramount consideration - Guardians
and Wards Act,1890 - Section 17-matter
to
be
considered
by
the
court
in
appointing guardian , Section 25 - Title
and guardian to custody of ward - law of
guardianship - welfare of the minor is of
paramount consideration.

Custody of minor child - Both the mother and
father are natural guardians - till he is a minor,
under Section 6 (a) of the Hindu Minority and
Guardianship, Act - Their rights are equal as
natural guardians - Court has spoken to the
minors who are not only of intelligent years but
teenagers, not far away from majority (Para5,7)

HELD:- This Court has to see where the welfare
of the minor is best secured. The stand of the
minors does not leave this Court in any doubt
that their welfare would be best served with
their mother. In fact, it would be a disservice to
the minors, if they were asked to stay with the
father. (Para-8)

Habeas corpus petition dismissed. (E-7)

List of Cases Cited:-
328 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Yashita Sahu Vs St. of Raj. & ors., (2020) 3
SCC 67

2. Githa Hariharan (Ms) & anr. Vs RBI & anr.,
(1999) 2 SCC 228

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

1. In compliance with the order dated
1.10.2020, Bishank and Sumit, both sons of
Amit Soni, have been produced before this
Court, by Constable Raj Kumar Yadav
(PNO no.182101843), posted at Police
Station-Kotwali Nagar, Banda, District
Banda, who has identified both the
detenues before the Court.

2. This Court accordingly, proceeds to
ascertain their stand in the matter:-

Q. Apka nam kya hai?

A. Bishank.

Q. Aapke pita ji ka nam?

A. Amit Soni.

Q. Aapki aayu?

A. 15 Saal.

Q.
Aap
kiske
sath
rahna
chahati hain?

A. Maa ke paas.

Q. Aap apane pita ji ke pass
kyon nahi rahana chahte; koi khaas
vajah?

A. Kyoki vo maa ko mara karate
the aur pita ji ko kai bar maine badi maa ke
sath apattijanak sthiti me dekha.

Q. Aapka nam?

A. Sumit.

Q. Aapki aayu?

A. 14 saal.

Q. Aap parhte hain?

A. Haan.

Q. Kiss class me?

A. 9th

Q. Aap kiske pas rahana chahte
hain?

A. Maa ke pass.

Q. Pita ji ke pass kyo nahi?

A. Kyo ki pita ji ma ke sath
atyachar karte the aur badi maa ke sath
galat harkate karte hua maine unhe kai bar
pakada.

3. Heard Sri Rajesh Kumar Singh,
learned counsel for the petitioners, Sri
Devesh Misra, learned Counsel for the
respondent no.4 and the learned A.G.A. on
behalf of the State.

4. Learned counsel for the petitioner
has submitted that he is the natural
guardian of the minors under Section 6 (a)
of the Hindu Minority and Guardianship,
Act and that his wife is the natural guardian
in his absence alone. It is pointed out that it
is in case of minors up to the age of 5 years
that the wife has a right to their custody.
Learned counsel for the respondent on the
other hand submits that the minors have
stayed with the wife and are well taken care
of. According to the learned counsel for the
respondent, both the minors are pursuing
their studies in classes 10th and 9th and are
being groomed to become good citizens.

5.

This
Court,
has
carefully
considered the matter and the material that
has appeared in this case. It is true that both
the mother and father are natural guardians
of a child, till he is a minor, under Section
6
(a)
of
the
Hindu
Minority
and
Guardianship, Act. Their rights are equal as
natural guardians, particularly, in view of
the decision of the Hon'ble Supreme Court
in the Case of Githa Hariharan (Ms) and
another vs. Reserve Bank of India and
another, (1999) 2 SCC 228, which has
placed the wife at the same pedestal, as the
husband in her right as a natural guardian
of the minor children. It is not that a
minor's
mother
becomes
the
natural
guardian, once the husband is no more. She
10 All. Jasbir Maan Vs. State of U.P. & Ors.
329
is entitled to that right if for any reason he
is not available, like the two becoming
estranged and living apart.

6. Now, there is some issue raised by
the learned counsel for the respondent that
in a custody dispute between the husband
and the wife, the remedy of a writ of
habeas corpus is not appropriate. It is
submitted
that
both
being
natural
guardians, parties should be relegated to
their remedy under Section 25 of the
Guardians and Wards Act. It is now settled
in view of the decision of the Hon'ble
Supreme Court in Yashita Sahu vs. State
of Rajasthan and others, (2020) 3 SCC
67 that a dispute about custody between
parents, can be gone into by this Court, in
the exercise of its jurisdiction to issue a
writ of habeas corpus, where one parent
claims that the child is in unlawful custody
of the other.

7. What really is of substance in a
matter about custody of a minor is his/her
welfare. It has become a truism in the law
of guardianship that welfare of the minor is
of paramount consideration. That is the
principle postulated under Section 17 of the
Guardians and Wards Act. The principle
about welfare of the minor being of
paramount consideration in the matter of
appointment of a guardian of the person of
the minor or in a custody matter is
embodied under Section 13 of the Hindu
Minority and Guardianship Act, 1956.
Thus, this Court has to see where the
welfare of the minor is best secured. It is in
this context, that the Court has spoken to
the minors who are not only of intelligent
years but teenagers, not far away from
majority. They have expressed themselves
eloquently. Much of the words they have
said have been recorded hereinabove
verbatim. In case of minors older in years,
particularly teenagers, their views are of
prime importance and required to be
accorded great weight while judging the
question about their welfare in a custody
dispute. Unless, the choice of a minor of
older years about his guardian or custody
be outrageous or demonstrably against his
interest the Court ought to give effect to it.
If that choice is in favour of one or the
other parent, there is very little scope to
deny it.

8. The stand of the minors does not
leave this Court in any doubt that their
welfare would be best served with their
mother. In fact, it would be a disservice to
the minors, if they were asked to stay with
the father.

9. In this view of the matter, this
Court does not find any good ground to
make the rule absolute. The rule nisi is
discharged.

10. The petition is dismissed.
----------

(2020)10ILR A329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1100 of 2019

Jasbir Maan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jyoti Kumar Singh, Sri Ishwar Chandra
Tyagi, Sri Rakesh Pande, Sri Vishakha
Pande