# Granth Verma v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 602
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Habeas Corpus Writ Petition No. 521 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/granth-verma-v-state-of-u-p-ors-47892
- **Pages:** 15

## Headnote

G.A., Sri Mahesh Narain Singh, Sri Shreyas
Srivastava

Habeas
Corpus-Corpus-7
year
old
boyapproached
through
his
mother-alleged
kidnapping of the corpus by his father-to
recover the corpus-present Habeas Corpus is
filed-father is one of the natural guardianinteraction with corpus reveals-he is happy
alongwith his father-parties have liberty to
ascertain their rights of custody of their children
in accordance with Guardians and Wards Act,

## Text

_Characters 0–39,987 of 51,555. This is a partial read: ask again with offset=39987 for what follows._

602 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 11 ILRA 602
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Habeas Corpus Writ Petition No. 521 of 2022

Granth Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sarvesh

Counsel for the Respondents:
G.A., Sri Mahesh Narain Singh, Sri Shreyas
Srivastava

Habeas
Corpus-Corpus-7
year
old
boyapproached
through
his
mother-alleged
kidnapping of the corpus by his father-to
recover the corpus-present Habeas Corpus is
filed-father is one of the natural guardianinteraction with corpus reveals-he is happy
alongwith his father-parties have liberty to
ascertain their rights of custody of their children
in accordance with Guardians and Wards Act,
1890.

Petition rejected. (E-9)

List of Cases cited:

1. Rohit Thammana Gowda Vs St.of Karn. &
ors., 2022 SCC OnLine SC 937

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

3. Nil Ratan Kundu Vs Abhijit Kundu, (2008) 9
SCC 413

4. Anjali Kapoor Vs Rajiv Baijal, (2009) 7 SCC
322
5. Athar Hussain Vs Syed Siraj Ahmed & ors.,
(2010) 2 SCC 654

6. Syed Saleemuddin Vs Dr. Rukhsana, (2001) 5
SCC 247

7. Vahin Saxena (Minor Corpus) & anr. Vs St.of
U.P. & ors. (Habeas Corpus Writ Petition No. 467
of 2021), decided on 27.08.2021

8. Shaurya Gautam (Minor) & anr. Vs St.of U.P.
& ors. (Habeas Corpus Writ Petition No. 140 of
2020), decided on 10.11.2020

9. Gyanmati Kushwaha & anr. Vs St.of U.P. &
ors. (Habeas Corpus Writ Petition No. 1217 of
2019), decided on 26.02.2021

10. Neelam Vs Man Singh & anr., 2015(2) RCR
(Civil) 291

11. Mohd. Ikram Hussain Vs St.of U.P. & ors.,
1964(5) SCR 86
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

A. GENESIS OF PRESENT WRIT
OF HABEAS CORPUS

1. Corpus, a seven years old boy, has
approached this Court through his mother,
Smt. Ashi Verma, alleging that Corpus was
kidnapped by her husband, Gaurav Verma
(Respondent-3)
on
02.06.2022
taking
advantage of good gesture shown by
mother of Corpus to allow him to meet
with Corpus. Respondents-4 and 5 are
father and mother of Respondent-3, who
are supporting her husband and they have
misbehaved with her when she alongwith
Police personnel went to their place to
recover the Corpus. Hence, to recover the
Corpus, present Habeas Corpus Petition is
filed.

B. COURT'S INTERACTION
WITH CORPUS
11 All. Granth Verma Vs. State of U.P. & Ors.
603

2. The Corpus is presently staying
with his father who appeared before this
Court on 16.09.2022 when this Court has
interacted with him and brief of the same is
mentioned in the order dated 16.09.2022,
when after hearing counsel for parties
judgment was reserved. For reference the
relevant part of said order is mentioned
hereinafter:

"1. The Corpus (a 7 years old boy)
appeared before this Court alongwith his
father. The Court itself interacts with boy in a
very cordial atmosphere. The boy is in joyable
mood and enjoying Court proceedings for past
an hour and responds to informal interaction in
very respectful manner. He answers wisely to
some general knowledge questions. The boy
has no complaint with his father, though he has
some minor issues with his mother and
conversation ends with mature observation by
Corpus that he wants to live happily alongwith
his mother and father, both and agreed to a
suggestion of the Court that he will hold hands
of his Mummy and Papa to live happily
together as a family."

C. INTER-PARENTAL CONFLICTS;
ITS' EFFECT ON CHILDREN

3. "Inter-Parental Conflict and Children's
Psychological Development" are now also
termed as "Child Affected by Relationship
Distress". It remained an important subject for
research scholars and various research papers
are available on research related website which
have considered "loyalty conflict", "parental
alienation" etc. Few of them alongwith their
conclusion/observation are referred hereinafter:

I.
IRE
JOURNALS
(ISSN
2456-8880); December, 2021: Effects of
Inter-Parental Conflict on Children's
Social Well-Being and the Mediation
Role of Parenting Behaviour-Author
Stephanie Hess-In this paper the author
after research come to the conclusion
"study overall provides empirical evidence
for the negative impact of inter-parental
conflict on children's social well-being
through a cascade of negative behavior
within the family environment that spills
over to the school environment. Children of
parents who have frequent inter-parental
conflicts perceive their mothers and fathers
to be less warm and to communicate more
negatively, which, in turn, leads to more
peer
problems
and
less
pro-social
behaviour in those children."

II. The Journal for Child
Psychology and Psychiatry, Volume 59,
Issue 4, Page 374-402: Annual Research
Review: Inter-parental Conflict and
Youth Psychopathology: An Evidence
Review and Practice Focused Update;
Authors
Gordon
T.
Harold,
Ruth
Sellers: The Authors after study observed,
"review highlights that frequent, intense,
poorly resolved, and child-related interparental conflict adversely affects longterm
emotional,
behavioural,
social,
academic
development,
and
future
intergenerational/interpersonal
relationship behaviours for youth."

III. International Journal of
Scientific Engineering and Research
(IJSER), Volume 7, Issue 3, March 2016:
Effect of Parent's Conflict on Children:
Author
Khoolud
Alamoudi-The
conclusion of paper is that, "in conclusion,
parents' conflicts damage children in many
aspects, three of which are physical,
psychological, and psychical effects. The
impact of parents' conflicts could follow
children until they grow up."

D. RIVAL SUBMISSIONS

4. Sri Sarvesh, learned counsel for
petitioner and Sri Mahesh Narain Singh,
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocate for Respondents-3 to 5, have
vehemently presented the case of their
parties. There were submissions and
counter submissions as well as allegations
and counter allegations. The conflict
between
parties
are
like
head
on
confrontation.

5. Learned counsel for petitioner
submitted that father and mother of Corpus
got married on 08.02.2010 and two sons
were born out of their wedlock. Elder son is
Corpus, who is seven years old and
younger one is presently residing with
mother. It is the case of mother that she
was tortured for many years and even an
attempt to murder was also made when she
was thrown away from a running train. In
this regard she has lodged an FIR under
Sections 498A, 323, 504, 307 IPC. The
Corpus was abducted and tortured. He was
forced to work at hotel of his father. The
family members of husband have assaulted
her when she went alongwith Police
personnel to recover the Corpus. The
mother has also lodged FIR against her
husband and family members for attempt to
murder, however, it is alleged that Police
personnel, under force and influence of
opposite parties, have lodged FIR only
under Sections 323, 504, 506 IPC, despite
she has suffered injuries which were
mentioned in medical examination report.
She has also filed a criminal case under
Section 125 Cr.P.C. for maintenance.
Learned counsel further submitted that
mother of Corpus was forced to sign papers
of compromise, on the basis of which
police submitted final report and case filed
under Section 125 Cr.P.C. was also
withdrawn. In support of allegations
mother has made statement under Section
164 Cr.P.C., however, under the garb of
compromise final report was submitted.
Learned counsel has also placed reliance on
certain photographs that father-in-law of
petitioner had not only assaulted her but
also touched her inappropriately and that
the Corpus was very happy with the
company of his mother, however, father
has abducted him and, therefore, Corpus
shall be returned back to her mother. It is
also contended that the Corpus has been
withdrawn from a very good school, i.e.,
St. Mery's Convent School and now he has
been admitted in a sub-standard school.

6. Sri Mahesh Narain Singh, learned
counsel for Respondents-3 to 5, has
vehemently opposed the above submissions
and placed counter allegation that Corpus
was tortured and he was not happy with his
mother, therefore, on his own sweet will he
accompanied his father and presently
residing happily. Compromise was entered
with open eyes by parties and the mother
tried to execute the same by Police
personnel which was not permissible.
There are video clippings to show that she
was hale and hearty when she was
recovered at Gwalior Railway Station. He
denied the allegation of attempt to murder
of the mother of Corpus. There are video
clippings to show that mother and her
parents were aggressor and tried to take the
Corpus forcefully against his will. The
Corpus is in a legal company of his father,
therefore, this habeas corpus petition is not
maintainable and further the mother has not
lodged any FIR that her son was
kidnapped.

E. LAW ON WRIT OF HABEAS
CORPUS

7. "Habeas Corpus" is a Latin word
which literary means "to have the body of".
The High Court under Article 226 of the
Constitution can issue a writ of habeas
corpus to a person who has detained
11 All. Granth Verma Vs. State of U.P. & Ors.
605
another person, to produce the later body
before it. The scope of writ of habeas
corpus of a minor from the custody of
mother as well as from father has been
discussed in various judgments passed by
this Court as well as Supreme Court and
some of them are mentioned hereinafter:

I. Rohit Thammana Gowda vs.
State of Karnataka and others, 2022
SCC OnLine SC 937:

"8. At the outset we may state that
in a matter involving the question of custody
of a child it has to be borne in mind that the
question ''what is the wish/desire of the child'
is different and distinct from the question
''what would be in the best interest of the
child'. Certainly, the wish/desire of the child
can be ascertained through interaction but
then, the question as to ''what would be in
the best interest of the child' is a matter to be
decided by the court taking into account all
the relevant circumstances. When couples
are at loggerheads and wanted to part their
ways as parthian shot they may level
extreme allegations against each other so as
to depict the other unworthy to have the
custody of the child. In the circumstances, we
are of the view that for considering the claim
for custody of a minor child, unless very
serious, proven conduct which should make
one of them unworthy to claim for custody of
the child concerned, the question can and
shall be decided solely looking into the
question as to, ''what would be the best
interest of the child concerned'. In other
words, welfare of the child should be the
paramount consideration. In that view of the
matter we think it absolutely unnecessary to
discuss and deal with all the contentions and
allegations in their respective pleadings and
affidavits." (Emphasis supplied)

II. Tejaswini Gaud and others
vs. Shekhar Jagdish Prasad Tewari and
others, (2019) 7 SCC 42:

"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
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
606 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

"26. The court while deciding the
child custody cases is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes govern the rights of the parents or
guardians, but the welfare of the minor is
the
supreme
consideration
in
cases
concerning custody of the minor child. The
paramount consideration for the court
ought to be child interest and welfare of the
child.

27. After referring to number of
judgments and observing that while dealing
with child custody cases, the paramount
consideration should be the welfare of the
child and due weight should be given to
child's ordinary comfort, contentment,
health, education, intellectual development
and favourable surroundings, in Nil Ratan
Kundu, it was held as under:-

"49.
In
Goverdhan
Lal
v.
Gajendra Kumar, AIR 2002 Raj 148 the
High Court observed that it is true that the
father is a natural guardian of a minor
child and therefore has a preferential right
to claim the custody of his son, but in
matters concerning the custody of a minor
child, the paramount consideration is the
welfare of the minor and not the legal right
of a particular party. Section 6 of the 1956
Act
cannot
supersede
the
dominant
consideration as to what is conducive to the
welfare of the minor child. It was also
observed that keeping in mind the welfare
of the child as the sole consideration, it
would be proper to find out the wishes of
the child as to with whom he or she wants
to live.

50.
Again,
in
M.K.
Hari
Govindan v. A.R. Rajaram, AIR 2003 Mad
315 the Court held that custody cases
cannot be decided on documents, oral
evidence or precedents without reference to
"human touch". The human touch is the
primary one for the welfare of the minor
since the other materials may be created
either by the parties themselves or on the
advice of counsel to suit their convenience.

51. In Kamla Devi v. State of
H.P. AIR 1987 HP 34 the Court observed:

"13. ... the Court while deciding
child custody cases in its inherent and
general jurisdiction is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can
stand in the way of the Court exercising its
parens patriae jurisdiction arising in such
cases
giving
due
weight
to
the
circumstances such as a child's ordinary
comfort, contentment, intellectual, moral
and physical development, his health,
education and general maintenance and the
favourable surroundings. These cases have
to be decided ultimately on the Court's view
of the best interests of the child whose
welfare requires that he be in custody of
one parent or the other."

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 the 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
11 All. Granth Verma Vs. State of U.P. & Ors.
607
should be the welfare and well-being 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 say, even more
important, essential and indispensable
considerations. If the minor is old enough
to form an intelligent preference or
judgment, the court must consider such
preference as well, though the final
decision should rest with the court as to
what is conducive to the welfare of the
minor." (Emphasis supplied)

III.
Nil
Ratan
Kundu
vs.
Abhijit Kundu, (2008) 9 SCC 413 (relied
by counsel for petitioner):

"52. In our judgment, the law
relating to custody of a child is fairly wellsettled and it is this. In deciding a difficult
and complex question as to custody of
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 humane 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 well-being 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 say, even more important,
essential and indispensable considerations.
If the minor is old enough to form an
intelligent preference or judgment, the
Court must consider such preference as
well, though the final decision should rest
with the Court as to what is conducive to
the welfare of the minor."

"57. In our opinion, in such
cases, it is not the `negative test' that the
father is not `unfit' or disqualified to have
custody of his son/daughter is relevant but
the `positive test' that such custody would
be in the welfare of the minor which is
material and it is on that basis that the
Court should exercise the power to grant
or refuse custody of minor in favour of
father, mother or any other guardian.

58. Though this Court in Rosy
Jacob held that children are not mere
chattels nor toys, the trial Court directed
handing
over
custody
of
Antariksh
`immediately' by removing him from the
custody of his maternal grand-parents.
Similarly, the High Court, which had
stayed the order of the trial Court during
the pendency of appeal ordered handing
over Antariksh to his father within twenty
four hours positively. We may only state
that
a
child
is
not
`property'
or
`commodity'. To repeat, issues relating to
custody of minors and tender-aged children
have to be handled with love, affection,
sentiments and by applying human touch to
the problem."

 (Emphasis supplied)

IV. Anjali Kapoor vs. Rajiv
Baijal, (2009) 7 SCC 322 (relied by
counsel for Respondents-3 to 5):

"16. In American Jurisprudence,
2nd Edn., Vol. 39, it is stated that:

"....An application by a parent,
through the medium of a habeas corpus
proceeding, for custody of a child is
608 INDIAN LAW REPORTS ALLAHABAD SERIES
addressed to the discretion of the court,
and custody may be withheld from the
parent where it is made clearly to appear
that by reason of unfitness for the trust or
of other sufficient causes the permanent
interests of the child would be sacrificed by
a change of custody. In determining
whether it will be for the best interest of a
child to award its custody to the father or
mother, the Court may properly consult
the child, if it has sufficient judgment."

"22. Bearing these factors in
mind, we proceed to consider as to who is
fit and proper to be the guardian of the
minor child Anagh in the facts and
circumstances of this case. In the present
case, the appellant is taking care of Anagh,
since her birth when she had to go through
intensive care in the hospital till today. The
photographs produced by her along with
the petition, which is not disputed by the
other side would clearly demonstrate, the
amount of care, affection and the love that
the grandmother has for the child having
lost
only
daughter
in
a
tragic
circumstances. She wants to see her
daughter's image in her grand child. She
has bestowed her attention throughout for
the welfare of reminiscent of her only
daughter, that is the minor child which is
being dragged from one end to another on
the so called perception of judicial
precedents and the language employed by
the legislatures on the right of natural
guardian for the custody of minor child."

"26.
Ordinarily,
under
the
Guardian and Wards Act, the natural
guardians of the child have the right to the
custody of the child, but that right is not
absolute and the Courts are expected to
give paramount consideration to the
welfare of the minor child. The child has
remained with the appellant/grandmother
for a long time and is growing up well in
an atmosphere which is conducive to its
growth. It may not be proper at this stage
for diverting the environment to which the
child is used to. Therefore, it is desirable to
allow the appellant to retain the custody of
the child." (Emphasis supplied)

V. Athar Hussain vs. Syed Siraj
Ahmed and others, (2010) 2 SCC 654
(relied by counsel for Respondents-3 to 5):

"31. We are mindful of the fact
that, as far as the matter of guardianship is
concerned, the prima facie case lies in
favour of the father as under Section 19 of
the GWC Act, unless the father is not fit to
be
a guardian,
the
Court has
no
jurisdiction to appoint another guardian. It
is also true that the respondents, despite
the voluminous allegations leveled against
the appellant have not been able to prove
that he is not fit to take care of the minor
children, nor has the Family Court or the
High Court found him so. However, the
question of custody is different from the
question of guardianship. Father can
continue to be the natural guardian of the
children;
however,
the
considerations
pertaining to the welfare of the child may
indicate lawful custody with another friend
or relative as serving his/her interest
better.

32. In Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 3 S.C.R. 918,
keeping in mind the distinction between
right to be appointed as a Guardian and
the right to claim custody of the minor
child, this Court held so in the following
oft-quoted words:

"Merely because the father loves
his children and is not shown to be
otherwise undesirable cannot necessarily
lead to the conclusion that the welfare of
the children would be better promoted by
granting their custody to him as against the
wife who may also be equally affectionate
towards her children and otherwise equally
free from blemish, and, who, in addition,
11 All. Granth Verma Vs. State of U.P. & Ors.
609
because of her profession and financial
resources, may be in a position to
guarantee better health, education and
maintenance for them."

"35.
Keeping
in
mind
the
paramount consideration of welfare of the
children, we are not inclined to disturb
their custody which currently rests with
their maternal relatives as the scope of this
order is limited to determining with which
of the contesting parties the minors should
stay till the disposal of the application for
guardianship."

"42. In our opinion, as far as the
question of custody is concerned, in the
light of the aforementioned decisions, the
personal law governing the minor girl
dictates her maternal relatives, especially
her
maternal
aunt,
shall
be
given
preference. To the extent that we are
concerned with the question of interim
custody, we see no reason to override this
rule of Mohammedan Law and, hence, a
prima facie case is found in favour of the
respondents. Further, the balance of
convenience lies in favour of granting
custody to the maternal grandfather, aunt
and uncle.

43. A plethora of decisions of
this Court endorse the proposition that in
matters of custody of children, their
welfare shall be the focal point. Once we
shift the focus from the rights of the
contesting relatives to the welfare of the
minor children, the considerations in
determining the question of balance of
convenience also differ. We take note of
the fact that respondent no.3, on record,
has stated that she has no intention to get
married and her plea that she had resigned
from her job as a technical writer to take
care
of
the
children
remains
uncontroverted. We are, hence, convinced
that the respondents will be in a position to
provide sufficient love and care for the
children
until
the
disposal
of
the
guardianship application.

44. The second marriage of the
appellant, though a factor that cannot
disentitle him to the custody of the children,
yet is an important factor to be taken into
account. It may not be appropriate on our
part to place the children in a predicament
where they have to adjust with their stepmother, with whom admittedly they had not
spent much time as the marriage took place
only in March, 2007, when the ultimate
outcome of the guardianship proceedings is
still uncertain.

45. The learned counsel for the
appellant placed reliance on the case of
Bal Krishna Pandey v. Sanjeev Bajpayee
AIR 2004 UTR 1 wherein the maternal
grandfather of the minor contested with the
father of the minor for custody of a girl
aged about 12 years. The Uttranchal High
court in that case gave the custody of minor
to the father rejecting the contention of
grandfather (appellant) that the father
(respondent) after his remarriage will not
be in a position to give fair treatment to the
minor. However, in that case, the second
wife of the father had been medically
proven as unable to conceive. Hence, the
question of a possible conflict between her
affection for the children whose custody
was in dispute and the children she might
bear from the father did not arise. In the
case before us, the situation is not the same
and the possibility of such conflict does
have a bearing upon the welfare of the
children."

 (Emphasis supplied)

VI. Syed Saleemuddin vs. Dr.
Rukhsana, (2001) 5 SCC 247 (relied by
counsel for Respondents-3 to 5):

"9. A Constitution Bench of this
Court in the case of Kanu Sanyal vs.
District Magistrate, Darjeeling and others
(1973 (2) SCC 674) dealing with the nature
610 INDIAN LAW REPORTS ALLAHABAD SERIES
and scope of a writ of Habeas Corpus
observed :

"It will be seen from this brief
history of habeas corpus that it 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 detailed is directed in order that the
circumstances of his detention may be
inquired into, or to put it differently, in
order
that
appropriate
judgment
be
rendered on judicial enquiry into the
alleged unlawful restraint. The form of the
writ employed is We command you that you
have in the Kings Bench Division of our
High Court of Justice immediately after the
receipt of this our writ, the body of A.B.
being taken and detained under your
custody together with the day and cause of
his being taken and detained to undergo
and receive all and singular such matters
and things as our court shall then and there
consider of concerning him in this behalf.
The italicized words show that 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 and, as pointed out by Lord
Halsbury, L.C. in Cox v. Hakes (supra), the
essential and leading theory of the whole
procedure is the immediate determination
of the right to the applicants 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."

10. This Court in the case of
Gohar Begam v. Suggi Alias Nazma Begam
and others (1960(1) SCR 597) dealt with a
petition for writ of Habeas Corpus for
recovery of a illegitimate female infant of
an unmarried Sunni Muslim mother, took
note
of
the
position
under
the
Mohammedan Law that the mother of an
illegitimate female infant is entitled to its
custody and the refusal to restore such a
child to the custody of its mother would
result in an illegal detention of the child
within the meaning of Section 491 of the
Criminal Procedure Code. This Court held
that the dispute as to the paternity of the
child is irrelevant for the purpose of the
application and the Supreme Court will
interfere with the discretionary powers of
the High Court if the discretion was not
judicially exercised. This Court further
held that in issuing writs of Habeas Corpus
the Court have power in the case of an
infant to direct its custody to be placed with
a certain person.

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
11 All. Granth Verma Vs. State of U.P. & Ors.
611
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."
(Emphasis supplied)

VII.
Vahin
Saxena
(Minor
Corpus) and another vs. State of U.P.
and others (Habeas Corpus Writ Petition
No. 467 of 2021), decided on 27.08.2021
(relied by counsel for Respondents-3 to 5):

"7. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is writ of right and not a writ of
course and may be granted only on
reasonable ground or probable cause
being shown, as held in Mohammad Ikram
Hussain v. State of U.P. and others, AIR
1964 SC 1625 and Kanu Sanyal v. District
Magistrate Darjeeling, (1973) 2 SCC 674.

8. The object and scope of a writ
of habeas corpus in the context of a claim
relating to custody of a minor child fell for
consideration in Sayed Saleemuddin v. Dr.
Rukhsana and others, (2001) 5 SCC 247,
and it was held that in a habeas corpus
petition seeking transfer of custody of a
child from one parent to the other, the
principal consideration for the Court would
be to ascertain whether the custody of the
child can be said to be unlawful or illegal
and whether the welfare of the child
requires that the present custody should be
changed. It was stated thus:

"11....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..."

"12.
The
exercise
of
the
extraordinary jurisdiction for issuance of a
writ of habeas corpus would, therefore, be
seen to be dependent on the jurisdictional
fact where the applicant establishes a
prima facie case that the detention is
unlawful.
It
is
only
where
the
aforementioned
jurisdictional
fact
is
established that the applicant become
entitled to the writ as of right.

13. In an application seeking a
writ of habeas corpus for custody of minor
child, as is the case herein, 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 his welfare requires that the
present custody should be changed and the
child should be handed over in the care
and custody of somebody else other than in
whose custody he presently is.

14. Proceedings in the nature of
habeas corpus may not be used to examine
the question of the custody of a child. 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. The power of the High
Court, in granting a writ, in child custody
612 INDIAN LAW REPORTS ALLAHABAD SERIES
matters, may be invoked only in cases
where the detention of a minor is by a
person who is not entitled to his/her legal
custody.

15. The role of the High Court in
examining cases of custody of a minor, in a
petition for a writ of habeas corpus, would
have to be on the touchstone of the
principle of parens patriae jurisdiction
and the paramount consideration would
be the welfare of the child. In such cases
the matter would have to be decided not
solely by reference to the legal rights of the
parties but on the predominant criterion of
what would best serve the interest and
welfare of the minor.

16. In a given case, while dealing
with a petition for issuance of a writ of
habeas corpus concerning a minor child,
directions may be issued for return of the
child or the Court may decline to change
the custody of the child, keeping in view all
the attending facts and circumstances and
taking into view the totality of the facts and
circumstances of the case brought before
the Court; the welfare of the child being the
paramount
consideration."
(Emphasis
supplied)

VIII. Shaurya Gautam (Minor)
and another vs. State of U.P. and others
(Habeas Corpus Writ Petition No. 140 of
2020), decided on 10.11.2020 (relied by
counsel for petitioner):

"14. It was also emphasized in Nil
Ratan Kundu that wishes of the minor
ought to be taken into consideration, where
the minor is of an age that he can express
his/her intelligent choice. This is a
principle embodied in Section 17(3) of Act,
1890. Bearing in mind these facts, this
Court carefully interacted with the elder of
the two minors, that is to say, Shaurya
Gautam. He is a 10-year old boy and fairly
intelligent. He informed the Court that he
and his sister stay at Sri Braddhanand Bal
Ashram, but he is not at all disturbed about
the fact that his maternal grandmother has
placed him and his sister there. He also
told the Court that there is a school, which
he and his sister attend. The grandmother
(nani) comes over to meet Shaurya and his
sister. He is emphatic that he does not wish
to go back to his father or stay with him.
On being asked the reason, he says that he
fears for his life. He also said that he
wishes to stay at the hostel. During the
course
of
conversation,
the
child
emotionally broke down and wept. He
insisted upon staying with the hostel and
refused to go back to his father. Smt.
Brahma
Devi
Tiwari,
the
minors'
grandmother, told the Court that she stayed
alone. Her daughter and son-in-law live
close by. On being asked why she does not
house the children in her home, she said
that she is fearful of their father. He would
kidnap both of them and get her framed in
a false case. It is for the said reason that
she has housed the two children in the
ashram. The minors' aunt, Smt. Uma
Rawat, told the Court that she is a
housewife. Her husband is an engineer in a
US-based firm, domiciled in Dehradun. She
also reiterated that they do not keep the
children with them, because the father
would get them implicated in some false
case. The father, on being asked, denied
these allegations and said that he never
threatened his in-laws."

IX. Gyanmati Kushwaha and
another vs. State of U.P. and others
(Habeas Corpus Writ Petition No. 1217
of 2019), decided on 26.02.2021 (relied by
counsel for petitioner):

"14. In the present case, the
Court is deprived of knowing the wishes of
the minor, because she is too young to
express her intelligent choice. The minor's
choice has been underscored by their
Lordships in Nil Ratan Kundu and also in
11 All. Granth Verma Vs. State of U.P. & Ors.
613
the provisions of Section 17(3) of the Act of
1890, but that can have no application in
the present case, where the minor is a very
young child, presently aged about three
years and a half. It is the circumstances
and the facts on record that alone can
serve as a guide in the foreshadow of
settled principles about the minor's welfare
to decide the question of her custody. It is
not known to this Court as to what are the
circumstances
appearing
against
the
mother, on the basis of which she has been
charged with conspiracy in her husband's
murder. This Court ought not to investigate
those circumstances also, that are the
concern of the court where she is facing
trial, but, as matters stand, she is an
accused in a case relating to her husband's
murder. The fact that she is an accused is
not in doubt. One consequence of this fact
is that she faces a situation where she
could be convicted, though the presumption
of innocence is all along with her. If she
were to be convicted, the minor's welfare
would be thrown into disarray. It would be
irreversibly unsettling and debilitating in
her formative years. It may even expose her
to insurmountable trauma, if she witnesses
her mother, whom she is bonded with,
convicted in the case of her father's
murder.

15. This Court assumes that the
possibility of conviction may be remote or
not so remote, but the possibility is there.
The existence of this possibility and the
adverse impact of the event, if it were to
come to pass, would far outweigh the
transitory benefit the minor would derive
from her mother's care and company.