# Dr. Surekha Saxena & Anr v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Habeas Corpus Writ Petition No. 381 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-surekha-saxena-anr-v-state-of-u-p-ors-49752
- **Pages:** 10

## Headnote

(A) Civil Law - Constitution of India,1950 -
Article 226, - Hindu Marriage Act, Section
- 9 - Civil Procedure Code, 1908 - Section -
44(a) - Writ of Habeas Corpus - against Illegal
custody - Minor child - Petition filed by the
Grandparents of Corpus, seeking a writ of
habeas corpus - maintainability - court finds
that, for the custody of the child, in ordinary
remedy, matter would normally lie under
provision of Hindu Minority and Guardianship
Act, 1956 and Wards Act, 1890 depending on
facts situation of the case - however, in the fact
and circumstances of the present case, this
court if the balance is to be struck between
mother and grandmother, the balance would
certainly tilt in favour of mother - custody of
corpus with his mother can in no way be said to
be illegal, unlawful - Held, the prayer of transfer
of custody of corpus, who is eight year old child
of respondent no. 4, in favour of his
grandmother, is declined and refused - However,
court directs to respondent no. 4 to provide
right to meet the corpus to petitioners on
regular basis, directions issued accordingly -
Petition disposed of.(Para - 21, 22, )

Writ Petition Disposed of. (E-11)

List of Cases cited: -

## Text

2 All. Dr. Surekha Saxena & Anr. Vs. State of U.P. & Ors.
885
both these offences are referable to the Act
1989 and also amenable to the jurisdiction
of the Exclusive Special Courts or the
Special Courts under the said Act.

42. Section 3(2)(va) provides for
punishment of an offence specified in the
schedule to the Act 1989 subject to
contingencies
mentioned
therein.
The
punishment shall be as specified in the
Indian Penal Code for such offences and
shall also be liable to fine. Thus, it is
incorrect to say that the petitioner would be
penalised under two provisions. It would
not be so.

43. In any case grounds (gg) and (hh)
in the writ petition can be raised/seen at the
appropriate
stage
before
the
Court
concerned and as of now it cannot be said
that the petitioner would be punished for
the same offence under two provisions.

44. In view of above discussion, we
see no reason to grant Relief No. 3.

45. All this is of course without prejudice
to the rights of the petitioner in the pending
investigation or before the Trial Court, if
the occasion so arises.

46. Subject to above, the petition is
dismissed.
----------
(2023) 2 ILRA 885
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 381 of 2022

Dr. Surekha Saxena & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Krishna Kant Vishwakarma, Sri Rajesh Kumar
Singh

Counsel for the Respondents:
G.A., Sri Deepak Kumar Srivastava, Sri Indra
Bhahadur Yadav

(A) Civil Law - Constitution of India,1950 -
Article 226, - Hindu Marriage Act, Section
- 9 - Civil Procedure Code, 1908 - Section -
44(a) - Writ of Habeas Corpus - against Illegal
custody - Minor child - Petition filed by the
Grandparents of Corpus, seeking a writ of
habeas corpus - maintainability - court finds
that, for the custody of the child, in ordinary
remedy, matter would normally lie under
provision of Hindu Minority and Guardianship
Act, 1956 and Wards Act, 1890 depending on
facts situation of the case - however, in the fact
and circumstances of the present case, this
court if the balance is to be struck between
mother and grandmother, the balance would
certainly tilt in favour of mother - custody of
corpus with his mother can in no way be said to
be illegal, unlawful - Held, the prayer of transfer
of custody of corpus, who is eight year old child
of respondent no. 4, in favour of his
grandmother, is declined and refused - However,
court directs to respondent no. 4 to provide
right to meet the corpus to petitioners on
regular basis, directions issued accordingly -
Petition disposed of.(Para - 21, 22, )

Writ Petition Disposed of. (E-11)

List of Cases cited: -

1. Cox Vs Hates, (1890) 15 AC 506 (HL),

2. Barnardo Vs Ford, (1862) AC 326,

3. R. Vs Secy. of St. for Home Affairs (1941) 3
All ER 104, 105,,

4. Kanu Sanyal Vs D.M., Darjeeling & ors.,
(1973) 2 SCC 674,

5. Nithya Anand Raghavan Vs St. of NCT of
Delhi & ors. (2017) 8 SCC 454,
886 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Syed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247,

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

8. Yashita Sahu Vs St. of Raj.n & ors., (2020) 3
SCC 67,

9. Kanu Sanyal Vs D.M., Darjeeling & ors.,
(2001) 5 SCC 247

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
petitioners, learned counsel for the private
respondents and learned A.G.A. for the
State.

2. Instant writ petition has been filed
by the petitioners seeking a writ of habeas
corpus with averment that petitioner no. 1
is grandmother of corpus (Ankur) on whose
behalf petition has been filed.

3. Pleadings have been exchanged
between the parties.

4. It is submitted by learned counsel
for the petitioners that respondent no. 4 is
mother of petitioner no. 2 (corpus). The
corpus is son of respondent no. 4 namely
Rimjhim w/o Amit Saxena. The corpus is
born out of wedlock of respondent no. 4
and her husband Amit Saxena. The corpus
born on 24.8.2014 in Singapur in presence
of his parents who was named as Ankur.
The marriage of Amit Saxena, who is s/o
petitioner no. 1, and respondent no. 4 was
arrange marriage which was solemnized on
30.1.2013 after the couple embarked on
honeymoon and first visited Bankok and
subsequently Singapur where corpus took
birth. After birth of child, the couple return
to India on 4.10.2014. Their return ticket to
Singapur was scheduled for 15.11.2014 but
respondent no. 4 did not join her husband
in return journey to Singapur. Her ticket
was extended twice but she refused to go
back to Singapur to live along with son of
petitioner no. 1 and retained the corpus in
her custody as she refused to go back to
Singapur along with corpus to join her
husband and custody of corpus become
illegal on that count. Thereafter relations
between
husband
and
wife
became
strained. Husband of the respondent no. 4
came to India on 24.8.2015 and persuaded
respondent no. 4 to come along with Ankur
to her parental place to celebrate birthday
of corpus but she refused. Matter between
husband
and
wife
was
referred
to
mediation. A suit for dissolution of
marriage
was
filed
by
husband
of
respondent no. 4 in Family Court, Singapur
in which decree for dissolution of marriage
was passed on 28.11.2017. The husband of
respondent no. 4 was directed to pay
regular maintenance to the corpus on
monthly basis. Joint custody of the corpus
was ordered by Family Court, Singapur in
favour of both the biological parents. As
decree was not complied by respondent no.
4, her husband filed an execution petition
before Indian Court under Section 44-A
C.P.C. seeking an execution of decree
passed by Singapur court. However, in
which respondent no. 4 appeared and said
execution was dismissed on 30.7.2019 in
default. In 2020, marriage of brother of
respondent no. 4 Rajat Mowar took place in
which proximity of respondent no. 4 with
one Abhishek Chaudhary (respondent no.
7) was observed in some photographs
provided by Priya Chaudhary, who has
been junior to Rimijhim while her studies
in
S.R.M.
Institute
and
Engineering
College,
Chennai,
in
B.Tech/Bio-tech
course. In fact Rimjhim solemnized second
marriage with said Abhishek Chaudhary on
1.12.2020 in Lucknow and reception was
2 All. Dr. Surekha Saxena & Anr. Vs. State of U.P. & Ors.
887
organized on 3.12.2020 at S.S. Palace,
Gorakhpur. As the mother of corpus has
entered in second marriage, the welfare of
corpus in custody of his biological mother
is not safe and Priya Chaudhary, bhabhi of
respondent no. 4, had witnessed that corpus
is being ill-treated by respondents. These
facts are narrated by her in a petition filed
under Section 9 of Hindu Marriage Act for
restitution of conjugal rights before Family
Court, Delhi on 10.9.2021. Despite the fact
that father of corpus is paying Rs. 16,500/-
approximate to the corpus for maintenance
as per decree of Singapur Court, however,
corpus is not being educated by the
respondents in proper manner and he has
been admitted in poor standard school in
Kanpur. On account of strained relations
between respondent no. 4 and her husband,
bright prospect of corpus is in peril and in
absence
of
custody
of
corpus,
his
grandmother, who is highly educated and
resourceful old lady, is helpless to extend
helping hand to him. The corpus is even
unable to recognize his grandparents and he
is deprived of the love and affection of his
grandparents at the instance of respondents.
The corpus is aged about 8 years of age and
keeping his age, he is not in dire need of
protection by biological mother. Petitioner
no. 1 is his grandmother and physically fit
and economically well off to take him into
her custody and take care of his educational
and other needs, therefore it is prayed that a
writ order or direction in the nature of
habeas corpus be issued directing the Staterespondents to set free the corpus from
private respondents and hand him over to
custody of petitioner no. 1, keeping in view
the paramount consideration of welfare of
corpus.

5. On the other hand prayer made in
the petition has been vehemently opposed
by private respondents and submitted that
respondent no. 4, who is mother of corpus,
has never contracted second marriage with
Abhishek Chaudhary i.e. respondent no. 7,
who is her familiar friend and not her
second husband. Respondent no. 4 has not
decided till date to marry with respondent
no. 7 or any person. Respondent no. 4
being mother of corpus is her natural
guardian and is able to take full care of her
son. Dr. Ashok Kumar Saxena, husband of
petitioner no. 1, has filed a false complaint
before S.S.P., Agra against respondent no. 4
with a view to harass her. Corpus is being
extremely well accordingly and in his cocurricular activities under guidance of his
mother, who is respected teacher in Kanpur.
Corpus is not in illegal custody of private
respondents. It is further submitted that
marriage of parents of corpus took place on
30.1.2013. Respondent no. 4 was working
in Multi National Company. At that time
she was harassed by petitioner no. 1 and
her husband for demand of additional
dowry. When couple were in Singapur after
marriage, respondent no. 4 came to know
that her husband was in relation with some
lady and when she raised her concern about
that, she was physically abused by her
husband. Petitioner no. 1 also visited
Singapur
and
physically
abused
the
respondent no. 4 and threatened her. She
was constantly tortured by her parents-inlaw and by her husband just after marriage
due to which she was compelled to live in
company of her husband and at present she
is residing in Kanpur at her paternal place.
The corpus is making good progress in
academic and other activities in his school
at Kanpur. These facts are elaborately
stated in counter affidavit.

6. Learned counsel for the private
respondents and learned A.G.A. submitted
that as the corpus is lying in custody of his
mother, it cannot be said illegal custody
888 INDIAN LAW REPORTS ALLAHABAD SERIES
and claim of petitioner no. 1 being
grandmother of corpus for transfer of
custody from his mother to her is
unfounded
and
without
any
legal
justification. The alternative prayer of
petitioner no. 1 for visitation rights of the
corpus is also not liable to be granted to her
in the facts and circumstances, keeping in
view the status of petitioner no. 1 with the
child and fact that she is residing in Agra,
which is away from the place where corpus
is residing. Welfare of the minor may be
jeopardized even if the visitation rights are
granted to petitioner no. 1. She is having
great animosity with the mother of the
child.

7. Habeas corpus "ad subjiciendum"
means "that you have the body to submit or
answer" which is called as Festinum
Remedium - A speedy remedy, which has
been sought by the petitioner in this instant
case.

8. Habeas Corpus is Latin for "you
have the body". The writ is referred to in
full in legal texts as habeas corpus ad
subjiciendum
or
more
rarely
ad
subjiciendum
et
recipiendum.
It
is
sometimes described as the "great writ". It
is considered as a most expeditious remedy
available under the law.

9. The meaning of the term habeas
corpus is "you must have the body".
Halsbury in his Laws of England, 4th
Edition, observed as follows:-

"The writ of habeas corpus ad
subjiciendum which is commonly known as
the writ of habeas corpus is a prerogative
process for securing the liberty of the
subject by affording an effective means of
immediate release from the unlawful or
unjustifiable detention whether in prison or
in private custody. It is a prerogative writ
by which the queen has a right to inquire
into the laws for which any of her subjects
are deprived of their liberty."

10. In Corpus Juris Secundum, the
nature of the writ of habeas corpus is
summarized thus:-

"The writ of habeas corpus is a writ
directed to the person detaining another,
commanding him to produce the body of the
prisoner at a designate time and place with
the day and cause of his caption and
detention to do, submit to, and receive
whatsoever the court or judge awarding the
writ shall consider in that behalf. 'Habeas
corpus' literally means "have the body". By
this writ, the court can direct to have the
body of the person detained to be brought
before it in order to ascertain whether the
detention is legal or illegal. Such is the
predominant position of the writ in the
Anglo-Saxon Jurisprudence."

11. Lord Halsbury LC in Cox v.
Hates, (1890) 15 AC 506, held that "the
right to an instant determination as to
lawfulness of an existing imprisonment" is
the substantial right made available by this
writ.

12. Likewise in Barnardo v. Ford,
(1862) AC 326, the writ of habeas corpus
has been described as a writ of right which
is to be granted ex debito justitiae. Though
a writ of right, it is not a writ of course. The
applicant must show a prima facie case of
his unlawful detention. Once, however, he
shows such a case and the return is not
good and sufficient he is entitled to this
writ as a matter of right.

13. In R. v. Secy. of State for Home
Affairs (1941) 3 All ER 104, 105, it has
2 All. Dr. Surekha Saxena & Anr. Vs. State of U.P. & Ors.
889
been held that a person is not entitled to be
released on a petition of habeas corpus if
there is no illegal restraint. "The question
for a habeas corpus court is whether the
subject is lawfully detained. If he is, the
writ cannot issue, if he is not, it must
issue."

14. Likewise in Cox v. Hakes, (1890)
15 AC 506 (HL), it has been held that the
writ of habeas corpus is an effective means
of
immediate
release
from
unlawful
detention, whether in prison or private
custody. Physical confinement is not
necessary to constitute detention. Control
and custody are sufficient.

15. A Constitution Bench judgment of
the Supreme Court in the matter of Kanu
Sanyal v. District Magistrate, Darjeeling
and others, (1973) 2 SCC 674, traced the
history, nature and scope of the writ of
habeas corpus. It has been held by Their
Lordships that it is a writ of immemorial
antiquity whose first threads are woven
deeply "within the seamless web of history
and untraceable among countless incidents
that constituted a total historical pattern of
Anglo-Saxon
jurisprudence".
Their
Lordships further held that the primary
object of this writ is the immediate
determination of the right of the applicant's
freedom and that was its substance and its
end. Their Lordships further explaining the
nature and scope of a writ of habeas corpus
held as under: -

"The writ of habeas corpus is
essentially a procedural writ. It deals with
the machinery of justice, not the substantive
law. The object of the writ is to secure
release of a person who is illegally
restrained of his liberty. The writ is, no
doubt, a command addressed to a person
who is alleged to have another person
unlawfully in his custody requiring him to
bring the body of such person before the
Court, but the production of the body of the
person detained is directed in order that the
circumstances of his detention may be
inquired into, or to put it differently, "in the
order
that
appropriate
judgment
be
rendered on judicial enquiry into the
alleged unlawful restrain". But the writ is
primarily designed to give a person
restrained of his liberty a speedy and
effective remedy for having the legality of
his detention enquired into and determined
and if the detention is found to be unlawful,
having himself discharged and freed from
such restraint. The most characteristic
element of the writ is its peremptoriness.
The essential and leading theory of the
whole
procedure
is
the
immediate
determination of the right to the applicant's
freedom and his release, if the detention is
found to be unlawful. That is the primary
purpose of the writ, that is its substance
and end. The production of the body of the
person alleged to be wrongfully detained is
ancillary to this main purpose of the writ. It
is merely a means for achieving the end
which is to secure the liberty of the subject
illegally detained."

16. Therefore, on the basis of above
cited judicial precedents, it can be said that
habeas corpus is not liable to be issued. As
a matter of course, it is a writ of right, it is
not a writ of course and the applicant must
show prima facie case of his unlawful
detention. The writ can only be issued on
establishing clear and specified grounds
which are legally tenable. Writ of habeas
corpus is a process by which a person, who
is confined without legal justification may
secure a release from his confinement. The
writ is, in form, an order issued by the High
Court calling upon the person by whom a
person is alleged to be kept in confinement
890 INDIAN LAW REPORTS ALLAHABAD SERIES
to bring such person before the court and to
let the the court know on what ground the
person is confined. If the petitioner
succeeds to convince the court that there is
no legal justification for detention, the
person will be ordered to be released,
however, the production of the body
(corpus) of the person alleged to be
unlawfully detained is not essential before
final hearing and disposal of a petition for
issuing writ of habeas corpus.

17. In Nithya Anand Raghavan v.
State of NCT of Delhi and others (2017) 8
SCC 454, it has been observed by the Apex
Court:

"44. The present appeal emanates from
a petition seeking a writ of habeas corpus for
the production and custody of a minor child.
This Court in Kanu Sanyal v. District
Magistrate, Darjeeling & Ors., (2001) 5 SCC
247, has held that habeas corpus was
essentially a procedural writ dealing with
machinery of justice. The object underlying
the writ was to secure the release of a person
who is illegally deprived of his liberty. The
writ of habeas corpus is a command
addressed to the person who is alleged to
have another in unlawful custody, requiring
him to produce the body of such person
before the Court. On production of the person
before the Court, the circumstances in which
the custody of the person concerned has been
detained can be inquired into by the Court
and upon due inquiry into the alleged
unlawful restraint pass appropriate direction
as may be deemed just and proper. The High
Court in such proceedings conducts an
inquiry for immediate determination of the
right of the person's freedom and his release
when the detention is found to be unlawful.

45. In a petition for issuance of a writ
of habeas corpus in relation to the custody
of a minor child, this Court in Sayed
Saleemmuddin v. Dr. Rukhsana and Ors.,
(2001) 5 SCC 247, has held that the
principal duty of the Court is to ascertain
whether the custody of child is unlawful or
illegal and whether the welfare of the child
requires that his present custody should be
changed and the child be handed over to
the care and custody of any other person.
While
doing
so,
the
paramount
consideration must be about the welfare of
the child. In the case of Mrs. Elizabeth
(supra), it is held that in such cases the
matter must be decided not by reference to
the legal rights of the parties but on the
sole and predominant criterion of what
would best serve the interests and welfare
of the minor. The role of the High Court in
examining the cases of custody of a minor
is on the touchstone of principle of parens
patriae jurisdiction, as the minor is within
the jurisdiction of the Court (see Paul
Mohinder Gahun Vs. State of NCT of Delhi
& Ors., (2004) 113 Delhi Law Time 823,
relied upon by the appellant). It is not
necessary to multiply the authorities on this
proposition.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at
the threshold whether the minor is in lawful
or unlawful custody of another person
(private respondent named in the writ
petition). For considering that issue, in a
case such as the present one, it is enough to
note that the private respondent was none
other than the natural guardian of the
minor being her biological mother. Once
that fact is ascertained, it can be presumed
that the custody of the minor with his/her
mother is lawful. In such a case, only in
exceptionable situation, the custody of the
minor (girl child) may be ordered to be
taken away from her mother for being given
to any other person including the husband
(father of the child), in exercise of writ
jurisdiction. Instead, the other parent can
2 All. Dr. Surekha Saxena & Anr. Vs. State of U.P. & Ors.
891
be asked to resort to a substantive
prescribed remedy for getting custody of
the child."

18. Further, in Syed Saleemuddin v.
Dr. Rukhsana and Ors., (2001) 5 Scc 247,
it has been observed by the Supreme Court:

"11. From the principles laid down in
the aforementioned cases it is clear that in an
application seeking a writ of Habeas Corpus
for custody of minor children the principal
consideration for the Court is to ascertain
whether the custody of the children can be
said to be unlawful or illegal and whether the
welfare of the children requires that present
custody should be changed and the children
should be left in care and custody of
somebody else. The principle is well settled
that in a matter of custody of a child the
welfare of the child is of paramount
consideration of the Court. Unfortunately, the
Judgment of the High Court does not show
that the Court has paid any attention to these
important and relevant questions. The High
Court has not considered whether the custody
of the children with their father can, in the
facts and circumstances, be said to be
unlawful. The Court has also not adverted to
the question whether for the welfare of the
children they should be taken out of the
custody of their father and left in the care of
their mother. However, it is not necessary for
us to consider this question further in view of
the fair concession made by Shri M.N. Rao
that the appellant has no objection if the
children remain in the custody of the mother
with the right of the father to visit them as
noted in the judgment of the High Court, till
the Family Court disposes of the petition filed
by the appellant for custody of his children."

19. Learned counsel for the private
respondent cited a pronouncement of
Hon'ble Apex Court in Tejaswini Gaud
and others Vs. Shekhar Jagdish Prasad
Tewari and others, (2019) 7 SCC 42,
where it was held that petition of habeas
corpus would be maintainable where
detention by parents or others is found to
be illegal and without any authority of law
and extraordinary remedy of a prerogative
writ of habeas corpus can be availed in
exceptional cases where ordinary remedy
provided by the law is either unavailable or
ineffective. The relevant observations of
the Apex Court in this judgment are
extracted as under:-

"14. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an 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 is treated as equivalent to illegal
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

xxxx

19. Habeas corpus proceedings is not
to justify or examine the legality of the
custody. Habeas corpus proceedings is a
medium through which the custody of the
child is addressed to the discretion of the
court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the
writ is issued where in the circumstances of
the particular case, ordinary remedy
provided by the law is either not available
or is ineffective; otherwise a writ will not
be issued. In child custody matters, the
power of the High Court in granting the
892 INDIAN LAW REPORTS ALLAHABAD SERIES
writ is qualified only in cases where the
detention of a minor by a person who is not
entitled to his legal custody. In view of the
pronouncement on the issue in question by
the Supreme Court and the High Courts, in
our view, in child custody matters, the writ
of habeas corpus is maintainable where it
is proved that the detention of a minor child
by a parent or others was illegal and
without any authority of law.

20. In child custody matters, the
ordinary remedy lies only under the Hindu
Minority and Guardianship Act or the
Guardians and Wards Act as the case may
be. In cases arising out of the proceedings
under the Guardians and Wards Act, the
jurisdiction of the court is determined by
whether the minor ordinarily resides within
the area on which the court exercises such
jurisdiction.
There
are
significant
differences between the enquiry under the
Guardians and Wards Act and the exercise
of powers by a writ court which is of
summary in nature. What is important is
the welfare of the child. In the writ court,
rights are determined only on the basis of
affidavits. Where the court is of the view
that a detailed enquiry is required, the
court
may
decline
to
exercise
the
extraordinary jurisdiction and direct the
parties to approach the civil court. It is
only in exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus."

20. Learned counsel for the petitioner
in support of the averments made in
petition and his statements cited, has placed
reliance in the judgment of Hon'ble Apex
Court in Yashita Sahu Vs. State of
Rajasthan and Others, (2020) 3 SCC 67,
in which Hon'ble Apex Court in an inter
country custody case of minor child where
wife brought her minor child to India from
U.S.A. in violation of U.S.A. court's order,
it was held that the custody of child cannot
be said to be strictly legal. However, in
opinion of Hon'ble Apex Court, High Court
could not have directed the appellant wife
to go to the U.S.A.. The wife is an adult
and no court can force her to stay at a place
where she does not want to stay. Custody of
child is a different issue, but even while
deciding the issue of custody of a child, no
direction can be issued to the adult spouse
to go and live with the other strained
spouse in writ jurisdiction.

Welfare of child is the paramount
consideration

While deciding matters of custody of
child,
primary
and
paramount
consideration is welfare of child. If welfare
of the child so demands, then technical
objections cannot come in the way.
However, while deciding the welfare of the
child, it is not the view of one spouse alone
which has to be taken into consideration.
Courts should decide the issue of custody
only on the basis of what is in the best
interest of the child.

(Para 20

The child is the victim in custody
battles. In this fight of egos and increasing
acrimonious battles and litigations between
two spouses, our experience shows that
more often than not, the parents who
otherwise love their child, present a picture
as if the other spouse is a villain and he or
she alone is entitled to the custody of the
child. The court must therefore be very vary
of what is said by each of the spouses.

(Para 21)

A child, especially a child of tender
years requires the love, affection, company,
protection of both parents. This is not only
the requirement of the child but is his/her
2 All. Dr. Surekha Saxena & Anr. Vs. State of U.P. & Ors.
893
basic human right. Just because the parents
are at war with each other, does not mean
that the child should be denied the care,
affection, love or protection of any one of
the two parents. A child is not an inanimate
object which can be tossed from one parent
to the other. Every separation, every reunion
may
have
a
traumatic
and
psychosomatic
impact
on
the
child.
Therefore, it is to be ensured that the court
weighs each and every circumstance very
carefully before deciding how and in what
manner the custody of the child should be
shared between both the parents. Even if
the custody is given to one parent the other
parent must havesufficient visitation rights
to ensure that the child keeps in touch with
the other parent and does not lose social,
physical and psychological contact with
any one of the two parents. It is only in
extreme circumstances that one parent
should be denied contact with the child.
Reasons must be assigned if one parent is
to be denied any visitation rights or contact
with the child. Courts dealing with the
custody matters must while deciding issues
of custody clearly define the nature,
manner and specifics of the visitation
rights. The concept of visitation rights is
not fully developed in India. Most courts
while granting custody to one spouse do
not pass any orders granting visitation
rights to the other spouse. As observed
earlier, a child has a human right to have
the love and affection of both the parents
and courts must pass orders ensuring that
the child is not totally deprived of the love,
affection and company of one of her/his
parents.

(Para 22 and 23)

Normally, if the parents are living in
the same town or area, the spouse who has
not been granted custody is given visitation
rights over weekends only. In case the
spouses are living at a distance from each
other, it may not be feasible or in the
interest of the child to create impediments
in the education of the child by frequent
breaks and, in such cases the visitation
rights must be given over long weekends,
breaks, and holidays. In cases like the
present one where the parents are in two
different continents effort should be made
to give maximum visitation rights to the
parent who is denied custody.

(Para 24)

21. On given thoughtful consideration
of above cited judicial precedents, it cannot
be stated on facts and circumstances of the
case that petitioner no. 1 has successfully
established a prima facie case that the
detention of corpus with his mother is
illegal or unlawful and the legal position is
that only on establishment of proximity fact
that detention of the corpus in the hand of
respondent is unlawful, the applicant would
become entitled to the writ of habeas
corpus filed for custody of corpus, in most
of the cases 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, illegal and also
whether child should be handed over in the
care and custody of someone else. The
prerogative writ of habeas corpus, is in the
nature of extraordinary remedy and the writ
is issued, where in the circumstances of a
particular
case,
the
ordinary
remedy
provided under law is either not available
or is ineffective. It is apparent that remedy
in child custody matters would normally lie
under provisions of Hindu Minority and
Guardianship Act, 1956 and Wards Act,
1890 depending on facts situation of the
case.

22. In the facts and circumstances of
the present case, in considered opinion of
this Court if the balance is to be struck
894 INDIAN LAW REPORTS ALLAHABAD SERIES
between mother (respondent no. 4) and
grandmother (petitioner no. 1), the balance
would certainly tilt in favour of mother,
who is respondent no. 4. However, I may
not be mis-understood that the grandmother
may not take proper care of minor, who is
her grand son, therefore, custody of corpus
with his mother can in no way be said to be
illegal, unlawful and the child has always
been remained with the custody of his
mother and was never at any point of time
in the custody of petitioner no. 1, therefore,
no case of transfer of custody from mother
of the corpus to his grandmother is made
out. However, in the totality of the facts
and circumstances and keeping in view the
aspirations
and
expectations
of
grandmother to visit and see her grand
child and shower her love and affection on
him, cannot be ignored and the same must
be dealt with a humanitarian hand in
respect of the fact that allegation and
counter allegations are made by petitioner
no. 1 and respondent no. 4 against each
other and father of the child is some what
out of picture in present petition. Thus,
although the prayer of petitioner no. 1 for
issuing writ of habeas corpus against
respondents and transfer of custody of
corpus, who is eight year old child of
respondent no. 4 and her husband, in favour
of his grandmother, is declined and refused
by this Court on the basis of discussion
mentioned
above.
In
my
considered
opinion, petitioner no. 1 shall have a
visitation rights over the child (petitioner
no. 2). However, this Court directs
respondent no. 4 to provide a right to meet
the corpus to petitioner no. 1, who is his
grandmother on regular basis preferably
once in a month subject to convenience of
the child, on a holiday, with prior
arrangement made by respondent no. 4, by
way
of
telephonic
consultation
with
petitioner no. 1, who is her mother-in-law,
at the place of choice of respondent no. 4.
The period of meeting of each day may
include a period of three to six hours at a
time, however, the meeting in a month may
be postponed if the examinations of child
are underway or on card. The meeting may
be supervised by respondent no. 4 to her
discretion.

23. With the above observations,
petition is finally disposed of.
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(2023) 2 ILRA 894
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.06.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE RAJIV JOSHI, J.

Special Appeal (D) No. 27 of 2021

State of U.P. ...Appellant
Versus
M/S S.J.P. Infra. Ltd. & Anr. ...Opp. Parties

Counsel for the Appellant:
Sri Sanjay Goswami

Counsel for the Opp. Parties:
Ms. Shreya Gupta, Sri Ravi Anand Agrawal, Sri
Ramendra Pratap Singh, Sri Shashi Nandan(Sr.
Advocate)

A. Revenue/Tax Law - Refund of the
Stamp Duty - Schedule 1-B of the Stamp
Act: Article 23(a), 35(b) - Indian Stamp
Act, 1899 - Section 3(aa), 49(d)(1) (2)
and
(5);
Seventh
Schedule
of
the
Constitution of India: Entry 44 of List III
(Concurrent List) - The legal position is:

(i) Stamp Act is a taxing statute;
(ii) in construing taxing statutes equity
and hardship are not relevant, one has to
strictly look at the words/language used
and there is no room for searching
intendment
or
of
drawing
any