# Garv Mishra (Minor) v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-01
- **Case number:** Habeas Corpus No. 24874 of 2019
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/garv-mishra-minor-v-state-of-u-p-ors-47402
- **Pages:** 6

## Headnote

Guardianship Act, 1956 - Section 6 -
Indian Penal Code, 1860 - Section 498-A,
323, 504 - The Code of criminal
procedure, 1973 - Section 125 - Dowry
Prohibition Act, 1961 - Section 3/4 -
welfare
of
the
minor
would
be
of
paramount consideration even if writ for
habeas corpus is maintainable.(Para -10 )

Petition filed for a direction to opposite parties
concerned - to produce minor son of petitioner -
820 INDIAN LAW REPORTS ALLAHABAD SERIES
for his custody to be handed over to petitioner.
(Para - 2 )

HELD:- It is apparent that writ petition for
habeas corpus in the present case seeking
custody of the minor child is maintainable.
Petitioner being father of the minor and natural
guardian in terms of Section 6 of the Act of
1956 would be entitled to custody of the minor
particularly since it is admitted that he has a
better financial condition to look after the minor
himself.(Para - 9,18)

Habeas corpus petition allowed. (E-7)

List of Cases cited:-

## Text

9 All Garv Mishra (Minor) Vs. State of U.P. & Ors.
819
though
has
received
the
petitioner's
representation on 12.10.2020 but it could
only be processed on 21.10.2020 when it
has been placed before the Under Secretary
and day-to-day process of the file w.e.f.
13.10.2020 to 21.10.2020 has not been
properly explained in the affidavit. Moreso,
the
file
relating
to
the
petitioner's
representation had reached to the office of
Joint Secretary (IS-II) on 23.10.2020 and
the same was forwarded by the Joint
Secretary (IS-II) to the Union Home
Secretary on 24.10.2020. Thereafter, report
was sought from Central Agency and the
required report of Central Agency was
received
by
section
concerned
on
06.11.2020. It transpires that the report of
the Central Agency was received on
06.11.2020 but it only processed for
consideration of the Union Home Secretary
on 09.11.2020. The day-to-day explanation
while
dealing
with
the
petitioner's
representation
between
25.10.2020
to
05.11.2020 have not been made by the
Central Government. Furthermore, the
petitioner's representation was rejected on
13.11.2020 but it was communicated to the
detenue/petitioner on 17.11.2020 only via
wireless message. Again, there is no dayto-day explanation between 14.11.2020 to
16.11.2020 on behalf of the Central
Government. Thus, there was delay in
disposal of the representation of the
petitioner by the Central Government and
having regard to the nature of detention and
rigor of law, we are of the view that there
was disproportionate delay at the end of the
Central Government.

(34) For the reasons aforesaid, we are
of the view that the plea of the
detenue/petitioner that there is delay in
forwarding the petitioner's representation
on the part of the respondent no.1 (Union
of India), has substance and on this count
alone, the impugned detention order is
liable to be quashed.

(35) In the result, the instant Habeas
Corpus Petition is allowed. The impugned
order of detention dated 17.09.2020 and the
consequential orders are hereby quashed.
The detenue/petitioner is ordered to be set
at liberty by the respondents forthwith
unless required in connection with any
other case.

(36) For the facts and circumstances
of the case, there is no order as to costs.
----------
(2021)09ILR A819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.09.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Habeas Corpus No. 24874 of 2019

Garv Mishra (Minor) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Upendra Kumar, Samarth Saxena

Counsel for the Respondents:
G.A., Anil Kumar Mishra, Vivek Kumar
Verma

(A) Habeas Corpus - Hindu Minority &
Guardianship Act, 1956 - Section 6 -
Indian Penal Code, 1860 - Section 498-A,
323, 504 - The Code of criminal
procedure, 1973 - Section 125 - Dowry
Prohibition Act, 1961 - Section 3/4 -
welfare
of
the
minor
would
be
of
paramount consideration even if writ for
habeas corpus is maintainable.(Para -10 )

Petition filed for a direction to opposite parties
concerned - to produce minor son of petitioner -
820 INDIAN LAW REPORTS ALLAHABAD SERIES
for his custody to be handed over to petitioner.
(Para - 2 )

HELD:- It is apparent that writ petition for
habeas corpus in the present case seeking
custody of the minor child is maintainable.
Petitioner being father of the minor and natural
guardian in terms of Section 6 of the Act of
1956 would be entitled to custody of the minor
particularly since it is admitted that he has a
better financial condition to look after the minor
himself.(Para - 9,18)

Habeas corpus petition allowed. (E-7)

List of Cases cited:-

1. Reetu & anr. Vs St. of U.P. & ors., Habeas
Corpus Writ Petition No.406 of 2020

2. Ram Naik Misra & anr. Vs Km. Gauri & ors. ,
First Appeal No.53 of 2018

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Samarth Saxena, learned
counsel for petitioner, learned Additional
Government Advocate for opposite parties
1 to 3 and Mr. Anil Kumar Mishra, learned
counsel for opposite parties 4 to 7.

2. This petition for a writ in the nature
of Habeas Corpus has been filed for a
direction to opposite parties concerned to
produce Garv Mishra, minor son of
petitioner and for his custody to be handed
over to petitioner.

3. Learned counsel for petitioner
submits that the detenu Garv Mishra is only
one and half years old with his date of
birth being 05.09.2018. It is submitted that
opposite parties 4 and 5 are the parents of
wife of petitioner who passed away on
10.08.2019. Opposite parties 6 & 7 are her
brothers with opposite party no.6 being
married and having his own family and
opposite party no.7 being unmarried as yet.

4 . It is noticed from the order sheet
that the issue pertaining to maintainability
of a writ petition for habeas corpus seeking
custody of child had been framed earlier.
With regard to the issue of maintainability
of a petition for habeas corpurs seeking
custody of a minor child has been dealt
with by Hon'ble the Supreme Court in
Tejaswini Gaud and others v. Shekhar
Jagdish Prasad Tewari and others reported
in (2019) 7 SCC 42.

5. In the aforesaid case, the issue was
with regard to maintainability of a writ of
habeas corpus for custody of minor when
efficacious alternative remedy is available
under the Hindu Minority & Guardianship
Act, 1956 (hereinafter referred to as the Act
of 1956). Hon'ble the Supreme Court in the
aforesaid case thereafter has held that in
child custody matters, a writ in the nature
of habeas corpus is maintainable where it is
proved that detention of minor child by a
parent or others was illegal and without
authority of law. It has subsequently also
been held that the welfare of the child is of
paramount interest and where the court is
of the view that a detailed enquiry is
required, the court would decline to
exercise the extra-ordinary jurisdiction and
direct the parties to approach Civil Court. It
has been further held that it is only in
exceptional cases, that rights of the parties
to the custody of minor will be determined
in a petition for habeas corpus. Relevant
paragraphs of the aforesaid decision are as
follows:-

"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
9 All Garv Mishra (Minor) Vs. State of U.P. & Ors.
821
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
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 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."

"21. In the present case, the
appellants are the sisters and brother of the
mother Zelam who do not have any
authority of law to have the custody of the
minor child. Whereas as per Section 6 of
the Hindu Minority and Guardianship Act,
the first respondent father is a natural
guardian of the minor child and is having
the legal right to claim the custody of the
child. The entitlement of father to the
custody of child is not disputed and the
child being a minor aged 11⁄2 years cannot
express its intelligent preferences. Hence,
in our considered view, in the facts and
circumstances of this case, the father, being
the natural guardian, was justified in
invoking the extraordinary remedy seeking
custody of the child under Article 226 of
the Constitution of India."

6. Following the aforesaid judgment,
a coordinate Bench of this Court in its
judgment and order dated 17.09.2020
rendered in Reetu & another v. State of
U.P. and others, Habeas Corpus Writ
Petition No.406 of 2020 has also held that a
writ of habeas corpus can be issued in
matters relating to custody of a child where
the child is in custody of a relative or a
person, who is not the lawful guardian,
though not an utter stranger. The relevant
paragraph is as follows:-

"13. A writ of habeas corpus can
certainly be issued in matters relating to
custody of a child where the child is in
custody of a relative or a person, who is
not the lawful guardian, though not an
utter stranger. A kinsman or a relative of
the child, who holds the child in custody
back from the lawful guardian, would
entitle
the
lawful
guardian
to
seek
restoration of custody through a writ of
habeas corpus. The question, whether the
person who applies for the writ is the
lawful guardian or not, is generally to be
determined with reference to the personal
law, applicable to parties. However so, the
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Court may also inquire into for the purpose
of determining the legality of the custody,
from which liberation is sought, vis-a-vis
the right of the person asking for the writ,
the question of welfare of the minor. "

7. Upon applicability of the aforesaid
judgments in the present case, it is admitted
between the parties that petitioner is the
father of minor Garv Mishra. It is also
undisputed that the minor in question is in
custody of opposite parties 4 to 7 since the
time when mother of the child was
undergoing treatment and subsequently
passed away.

8. In view of aforesaid judgments, it
is apparent that writ petition in the nature
of habeas corpus would be maintainable
with regard to custody of child who is in
the custody of a person who is not a natural
lawful guardian but is also not an utter
stranger, as in the present case, while
opposite parties 4 to 7 are related to the
minor through mother. Since it is admitted
between the parties that petitioner is father
of the minor child, naturally in terms of the
Act of 1956, father is the natural guardian
of the minor.

9. In view of aforesaid facts, and upon
applicability of aforesaid judgments, it is
apparent that writ petition for habeas
corpus in the present case seeking custody
of the minor child is maintainable.

10. In the aforesaid judgments, it has
also been held that welfare of the minor
would be of paramount consideration even
if writ for habeas corpus is maintainable. In
the present case, learned counsel for
petitioner has drawn attention to his
financial and social standing with the
submission that the answering opposite
parties do not have the financial capability
to look after the minor child and it would
be in the interest of minor in case custody
is given to petitioner who admittedly has
the financial wherewithal to take care of the
interest of the minor.

11. Learned counsel appearing on
behalf of opposite parties 4 to 7 on the
other hand has contended that petitioner did
not take care of his wife when she was
diagnosed with cancer and has in fact left
her at the mercy of her parents and
brothers. It is submitted that due to illtreatment by petitioner of his wife, a first
information report was also lodged against
him under Section 498-A, 323, 504 I.P.C.
and Section 3/4 Dowry Prohibition Act,
1961 and, therefore, interest of the minor
would not be served in case custody is
handed over to petitioner. Learned counsel
has also placed reliance on a Division
Bench decision of this Court in the case of
Ram Naik Misra and another v. Km.
Gauri and others rendered in First Appeal
No.53 of 2018 in which considering the
paramount consideration of welfare and
interest of the minor child, the Court
declined to provide custody to father of the
minor.

12. In paragraph 4 of the writ petition,
it has been stated that petitioner belongs to
a respected family and is running business
of a general store in his neighbourhood.
Father of petitioner has superannuated from
Forest Department and is getting his
pension while his mother is a house wife. It
has also been stated that petitioner resides
with his parents in own house in
Lakhimpur Kheri. The aforesaid contents
of writ petition with regard to financial and
social standing of petitioner have not been
denied by the answering opposite parties in
their counter affidavit but it has been
merely stated that conduct and behaviour of
9 All Garv Mishra (Minor) Vs. State of U.P. & Ors.
823
father of the child and his family was never
been good towards mother of the child and
petitioner has not cared for the minor. In
paragraph 19 of the counter affidavit, it has
also been stated that a petition under
Section 125 Cr.P.C. has been filed by the
maternal grand father of the minor (arrayed
as opposite party no.4 to the present
petition) before the Principal Judge, Family
Court, Lakhimpur Kheri, registered as Case
No.834 of 2019.

13. A perusal of the petition under
Section 125 Cr.P.C. indicates that in
paragraph 5, it has been stated that the
maternal grand father is not in a financial
position to take care of the minor. In
paragraph 6, it has been stated that father of
the minor, i.e. the petitioner herein has the
financial wherewithal to take care of the
minor. It has also been stated that petitioner
herein is the owner of a general store and
does not earn less than Rs.50,000/- per
month and is, therefore, in a better financial
position to take care of the minor.

14. Considering the fact that the
opposite parties have not denied the good
financial condition of petitioner while at
the same time indicating their precarious
financial position, it is evident from the
material on record that petitioner being not
only the natural guardian of the minor in
terms of Section 6 of the Act of 1956
would also be in a better position to take
care of the minor rather than the answering
opposite parties.

15. With regard to said submission, it
is apparent from a perusal of the first
information report brought on record as
Annexure 6 to the petition that the same
has been lodged at the instance of opposite
party no.4 (who is father in law) and not
the wife. The treatment prescriptions on
record annexed to the petition indicates
treatment of wife of petitioner, Arti Misra
having taken place at the instance of the
petitioner. From a perusal of the documents
on record, it is apparent that the dispute
with regard to custody of minor had
cropped up after demise of Arti Misra,
between the petitioner and his in-laws,
which has also resulted in acrimonious
litigation.

16. From the aforesaid, it is evident
that the opposite parties have not denied the
fact that petitioner is the father and, thus,
the
natural
guardian
of
the
minor.
Similarly, his better financial condition visa-vis opposite parties 4 to 7 has also been
admitted by the opposite parties in their
counter affidavit, which is also evident
from the averments made in the petition
under Section 125 Cr.P.C. As such, in the
considered opinion of this Court, since
petitioner is admittedly the natural guardian
of the minor and is in a better financial
condition than opposite parties 4 to 6, he
would, thus, be better placed to look after
the interest and welfare of the minor,
particularly in the absence of any pleading
by opposite party that petitioner has
misbehaved with the minor.

17. So far as the judgment relied upon
by learned counsel for answering opposite
parties is concerned, a perusal of the same
in Ram Naik Misra(supra) indicates that
the court refused to grant custody of minor
children to the father on the ground that the
minors therein who were aged about 15
years and 13 years categorically stated
before the court that they did not want to
live with their father. Even in the said
judgment, it has been held that it is the
settled position of law that the father is the
natural guardian of minor children and,
therefore, he has preferential rights to
824 INDIAN LAW REPORTS ALLAHABAD SERIES
custody of a minor. As is evident, the facts
and circumstances of aforesaid case are
clearly
distinguishable
and
are
not
applicable in the present case.

18. In view of aforesaid, this Court is
of the considered opinion that petitioner
being father of the minor and natural
guardian in terms of Section 6 of the Act of
1956 would be entitled to custody of the
minor particularly since it is admitted that
he has a better financial condition to look
after the minor himself.

19. In view of aforesaid, the petition
for habeas corpus succeeds and is allowed.
Consequently, it is ordered that the minor
be set at liberty by opposite parties 4 to 7
who shall deliver custody of the minor,
Garv Mishra to petitioner Anurag Mishra
within four weeks from the date of this
judgment. In case custody of the minor is
not delivered by opposite parties 4 to 7 or
anyone claiming through them, the learned
Chief Judicial Magistrate, Lakhimpur Kheri
shall cause the minor to be delivered to
petitioner Anurag Mishra by employment
of
necessary
force
through
the
Superintendent
of
Police,
Lakhimpur
Kheri, who is directed to act in the aid of
learned
Chief
Judicial
Magistrate,
Lakhimpur Kheri in the matter. It is further
directed that on the first Sunday of every
month, between 10.00 a.m. to 2.00 p.m.,
petitioner Anurag Mishra shall permit
opposite parties 4 to 7 to meet the minor
Garv Mishra at his residence and during
each such visit, petitioner Anurag Mishra
shall extend all due courtesies to opposite
parties 4 to 7 and will facilitate the meeting
between them.

20. Let this order be communicated
forthwith by the Registrar to learned
District Judge, Lakhimpur Kheri, learned
Chief Judicial Magistrate, Lakhimpur Kheri
and
the
Superintendent
of
Police,
Lakhimpur Kheri for consequential action.
----------
(2021)09ILR A824
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 3001 of 2021

Pradeep Kumar Singh @ Atma Singh &
Anr. ...Petitioner
Versus
A.D.J., Barabanki & Ors. ...Respondents

Counsel for the Petitioner:
Ghufran Hussain

Counsel for the Respondents:
Pankaj Kumar Verma

A. Civil Law - Small Causes Court Act,
1887: Section 17 - The Court held that
on reading proviso to Section 17 of the
Act it is observed that if the deposit
made by the tenant falls short of amount
required to deposited, the tenant will be
deprived of the benefit, even if shortfall
in such deposit was because of tenant's
ignorance
or
without
any
malafide
intention. Thus, due to the aforesaid
reason application for setting aside the
ex parte decree will not be maintainable.
(Para 27)

The petitioner had deposited Rs. 19,200 only
and had made no application to the court saying
that they were ready and willing to deposit
security for any amount which was further
found due on them. (Para 28)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Kedar Nath Vs Mohan Lal Kesarwari & ors.
AIR 2002 SC 582