# Gyanmati Kushwaha & Anr v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-26
- **Case number:** Habeas Corpus Writ Petition No. 1217 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanmati-kushwaha-anr-v-state-of-u-p-ors-46880
- **Pages:** 7

## Headnote

(A) Civil Law - The Hindu Minority and
Guardianship Act, 19562 - Section 6(a) -
Writ of Habeas Corpus - Custody of minor
daughter - Code of criminal procedure,
1973 - Section 97 - Search for persons
wrongfully confined - Natural guardians of
a Hindu minor - in the case of a boy or an
unmarried girl - the father, and after him,
the mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother - The guardians and wards Act,
1890 - Section 17 - matters to be
considered by the court in appointing
guardian - Section 17(2) - If the minor is
old
enough
to
form
an
intelligent
preference, the court may consider that
preference .(Para - 5,8,14)
380 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner no. 1 facing trial as a co-accused in the
case relating to her husband's murder - release on
bail - petitioner no.1 asked petitioner no. 5 (maternal
Father - in - law) that she may be handed back her
daughter's custody - refused - filed an application to
the District Magistrate under Section 97 of the Code
of Criminal Procedure, 1973 - with a case that her
minor daughter was in illegal confinement of
petitioner no. 5 (maternal Father - in - law) - No
action taken on application - First petitioner, asking
that her minor daughter aged about two years, be
ordered to be produced before this Court from the
custody of respondent no. 5 ( Maternal father in law)
and emancipated there from in the manner that she
be entrusted into the care and custody of the first
petitioner, her mother. (Para -1,5)

HELD: - It is made clear that in the event the
mother is acquitted by judgment based on doubt
or otherwise, she would have the right to move a
court of competent jurisdiction for her daughter's
custody, which would then be decided in
accordance with law. This Court does not find any
good ground to make the rule absolute. It is,
accordingly, discharged. (Para -16,17)

Habeas Corpus petition dismissed. (E-6)

List of Cases cited: -

## Text

3 All. Gyanmati Kushwaha & Anr. Vs. State of U.P. & Ors.
379
approach
the
appropriate
court.
The
aforementioned legal position has been
considered in a recent judgement of this
Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6.

16. In the present case, it is
undisputed that the child is with his father
since 22.8.2019 under his care and custody.
It is not the case of either party that the
child was forcibly taken away by the father
from the custody of the mother. The
pleadings and the material on record
indicates the existence of a dispute with
regard to the handing over the custody of
the child to the mother, pursuant to some
agreement between the parties, the terms of
which, are now being disputed.

17. It has been pointed out that the
date of birth of the child is 09.08.2013, and
accordingly, the child being more than 5
years of age, the custody of the child with
the father, in view of the provisions under
Section 6(a) of The Hindu Minority and
Guardianship Act, 1956, cannot be said to
be prima facie illegal.

18. A writ of habeas corpus, as has
been consistently held, though a writ of
right is not to be issued as a matter of
course, particularly when the writ is sought
against a parent for the custody of a child.

19. The contention which has been
sought to be raised by the counsel for the
petitioner with regard to the mother's claim
for custody and visitation rights, are
matters which are to be agitated in
appropriate proceedings.

20. It is made clear that the
observations made, herein above, are prima
facie in nature and the same are without
prejudice to the rights and contentions of
the parties, which may be agitated in
proceedings before the appropriate forum.

21. Having regard to the aforestated
facts, this Court is not inclined to exercise
its extraordinary jurisdiction in the matter.

22. The petition thus fails and is
accordingly, dismissed.
----------
(2021)03ILR A379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 1217 of 2019

Gyanmati Kushwaha & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Azad Khan, Sri Mohini Jaiswal

Counsel for the Respondents:
A.G.A., Sri Ali Hasan, Sri Fakhruzzaman, Sri
Om Prakash, Sri Fakhra Uz Jama

(A) Civil Law - The Hindu Minority and
Guardianship Act, 19562 - Section 6(a) -
Writ of Habeas Corpus - Custody of minor
daughter - Code of criminal procedure,
1973 - Section 97 - Search for persons
wrongfully confined - Natural guardians of
a Hindu minor - in the case of a boy or an
unmarried girl - the father, and after him,
the mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother - The guardians and wards Act,
1890 - Section 17 - matters to be
considered by the court in appointing
guardian - Section 17(2) - If the minor is
old
enough
to
form
an
intelligent
preference, the court may consider that
preference .(Para - 5,8,14)
380 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner no. 1 facing trial as a co-accused in the
case relating to her husband's murder - release on
bail - petitioner no.1 asked petitioner no. 5 (maternal
Father - in - law) that she may be handed back her
daughter's custody - refused - filed an application to
the District Magistrate under Section 97 of the Code
of Criminal Procedure, 1973 - with a case that her
minor daughter was in illegal confinement of
petitioner no. 5 (maternal Father - in - law) - No
action taken on application - First petitioner, asking
that her minor daughter aged about two years, be
ordered to be produced before this Court from the
custody of respondent no. 5 ( Maternal father in law)
and emancipated there from in the manner that she
be entrusted into the care and custody of the first
petitioner, her mother. (Para -1,5)

HELD: - It is made clear that in the event the
mother is acquitted by judgment based on doubt
or otherwise, she would have the right to move a
court of competent jurisdiction for her daughter's
custody, which would then be decided in
accordance with law. This Court does not find any
good ground to make the rule absolute. It is,
accordingly, discharged. (Para -16,17)

Habeas Corpus petition dismissed. (E-6)

List of Cases cited: -

1. Roxann Sharma Vs Arun Sharma, (2015) 8
SCC 318

2. Nil Ratan Kundu & anr. Vs Abhijit Kundu,
(2008) 9 SCC 413

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

1. This petition for a writ of habeas
corpus has been instituted by the first petitioner,
Gyanmati Kushwaha, asking that her minor
daughter, Drisha Kushwaha, aged about two
years, be ordered to be produced before this
Court from the custody of respondent no. 5,
Kamal Kushwaha, and emancipated therefrom
in the manner that she be entrusted into the care
and custody of the first petitioner, her mother.

2. Pending admission, by an order dated
12.02.2020, Suresh Kushwaha was ordered to
be impleaded as respondent no. 6, inasmuch as
it transpired from an order passed by the City
Magistrate dated 20.11.2019 that the minor,
Drisha, petitioner no. 2 was in the former's
custody, who is Drisha's grandfather (paternal).
He was, accordingly, impleaded as respondent
no. 6.

3. This petition was admitted to hearing
vide order dated 24.09.2020, and a rule nisi was
issued, ordering Drisha Kushwaha, the minor,
to be produced on 08.10.2020. On the date of
return, a counter affidavit was filed on behalf of
respondent no. 6, to which a rejoinder affidavit
was filed too, in Court. On that day, Drisha's
mother,
Gyanmati
Kushwaha,
the
first
petitioner, her grandfather Suresh Kushwaha,
the sixth respondent, and her father's maternal
uncle Kamal Kushwaha, the fifth respondent
were present. The matter was heard at length.
The hearing was adjourned to 15.10.2020. It
was further heard on 15.10.2020, with Smt.
Gyanmati Kushwaha and Suresh Kushwaha
being in attendance. On the said date, judgment
was reserved, with a direction that Gyanmati
Kushwaha and Suresh Kushwaha will appear
on the date fixed for delivery of judgment, to be
intimated by the Registry.

4. The facts that appear from the
record
are
that
the
first
petitioner,
Gyanmati Kushwaha and the late Krishna
Kushwaha, son of Suresh Kushwaha, were
married, according to Hindu rites, on
11.11.2011 at Shree Durga Bhavani Seva
Mandal, Shivaji Nagar, B.M.C. Colony,
Bandra East, Mumbai. This marriage was
according to the wishes of the husband and
wife, and as it appears, did not have origins
in the blessings of the couple's families.
Later on, Smt. Gyanmati Kushwaha and
her late husband, Krishna Kushwaha,
appear to have persuaded their respective
families to bless the couple, which
followed a marriage in right earnest being
3 All. Gyanmati Kushwaha & Anr. Vs. State of U.P. & Ors.
381
solemnized all over again on 26.11.2012.
There is a photostat copy of the invitation
card relating to that marriage on record,
which no one has disputed before this
Court. In course of time, a daughter was
born to the parties, who came to be named
Drisha. She was born on 28.05.2017. It is
about her custody that the mother and her
grandfather,
Suresh
Kushwaha,
are
engaged in a strife.

5. To revert some paces in time, in the
sequential narration of events, it is
Gyanmati's case that she, her husband
Krishna Kushwaha and her daughter Drisha
were domiciled in Mumbai. Gyanmati's
husband Krishna Kushwaha had come
away to his native place at Jhansi on
11.05.2018, while Gyanmati stayed back in
Mumbai. She received a call from Kamal
Kushwaha, her husband's maternal uncle,
on
13.05.2018,
that
some
unknown
offenders had done Krishna to death.
Kamal
Kushwaha
asked
Gyanmati
Kushwaha to come over to Jhansi along
with
her
daughter.
She
immediately
proceeded to Jhansi along with Drisha.
Once there, she met Kamal Kushwaha.
Kamal took along Gyanmati to the police
station, where she was surprised to know
that she had been implicated in her
husband's murder, as she says at the
instance of Kamal, and was arrested.
Gyanmati Kushwaha was remanded to
judicial custody on 16.05.2018, and at that
time, Kamal snatched away Drisha from
her. It is said that at that time, Drisha had
not yet been weaned away, but still,
Gyanmati was deprived her daughter's care
and custody, while in jail. Gyanmati
Kushwaha applied for bail and was
released from prison on 10.09.2018. The
parties
are
ad
idem
that
Gyanmati
Kushwaha is currently facing trial as a coaccused in the case relating to her
husband's murder. After her release on bail,
Gyanmati
Kushwaha
asked
Kamal
Kushwaha that she may be handed back her
daughter's custody, but he refused. It is said
that she is a native of Mumbai, and did not
know anybody at Jhansi. Therefore, she
returned to Mumbai on 30.09.2018. She
came back to Jhansi on 05.01.2019 once
again and requested Kamal Kushwaha to
hand over her minor daughter back. Kamal
Kushwaha
did
not
allow
Gyanmati
Kushwaha to meet Drisha. He told
Gyanmati Kushwaha that her in-laws had
shifted to Mumbai and taken away Drisha
with them. Once again, Gyanmati came to
Jhansi to meet her lawyer in connection
with the criminal case pending against her
in the District Court at Jhansi. She
reiterated her request to Kamal Kushwaha
that her daughter may be handed back to
her. The request was again refused.
Gyanmati
Kushwaha
then
filed
an
application to the District Magistrate on
21.08.2019 under Section 97 of the Code of
Criminal Procedure, 19731, with a case that
her daughter was in illegal confinement of
Kamal Kushwaha, and that the minor may
be emancipated therefrom and handed back
to her. No action was taken on this
application. The petitioner then moved a
habeas corpus writ petition before this
Court, being Habeas Corpus Writ Petition
No. 922 of 2019, which was disposed of
directing the District Magistrate to pass
appropriate
orders
on
the
pending
application made by Gyanmati Kushwaha
under Section 97 of the Code, within two
weeks of receipt of a certified copy of the
order made by the Court. The District
Magistrate, in passing that order, laid his
hands off the matter, in view of the fact that
on
18.08.2018,
the
Chief
Judicial
Magistrate had entrusted Drisha's custody
to Suresh Kushwaha, respondent no. 6, on
an undertaking that the latter would look
382 INDIAN LAW REPORTS ALLAHABAD SERIES
after the child's welfare. That order appears
to have been passed in connection with
Crime No. 263 of 2018, under Section 302
of the Indian Penal Code, 1860, Police
Station - Kotwali, District - Jhansi, relating
to Krishna Kushwaha's murder.

6. Faced with this deprivation of her
minor
daughter's
custody,
Gyanmati
Kushwaha has petitioned this Court, where
the course of proceedings, so far taken,
have been delineated above.

7. Heard Ms. Mohini Jaiswal, learned
counsel for the petitioners, Mr. Vishal
Agarwal, Advocate holding brief of Mr.
Fakhruzzaman, learned counsel appearing
on behalf of respondent no. 6, Mr. Om
Prakash, learned counsel appearing on
behalf of respondent no. 5, and Mr.
Jhamman Ram, learned A.G.A. appearing
on behalf of the State.

8. It is submitted on behalf of
Gyanmati Kushwaha that she is Drisha's
mother, and the only surviving natural
guardian,
after
her
husband
Krishna
Kushwaha's death. She is entitled to
Drisha's custody. It is submitted by Ms.
Jaiswal on behalf of Gyanmati Kushwaha
that the provisions of Section 6(a) of The
Hindu Minority and Guardianship Act,
19562 are of particular relevance. She
emphasizes that under the proviso to
Section 6(a), the mother has the right to the
custody of a minor child until the age of
five years ordinarily, which is quite apart of
her
right
to
the
minor's
natural
guardianship. It is said that pitted against
the minor's father, in cases where the minor
is below five years of age, the mother
would have a preference in the matter of
custody over the father also. Here, Suresh
Kushwaha is Drisha's grandfather. It is
absolutely not in the minor's welfare to
entrust her custody to the grandfather,
while the mother is around. There is no one
better than the mother to look after the
custody of a child, particularly, a young
child.

9. Mr. Vishal Agarwal, Mr. Om
Prakash and Mr. Jhamman Ram, on the
other hand, have argued in one voice to say
that the general rule postulated under the
proviso to Section 6(a) of the Act of 1956,
and elsewhere too, about the mother's right
to a young child's custody would not be
applicable here. They submit that in this
case, the mother would not be entitled to
Drisha's custody, because she is an accused
in the case relating to her husband's
murder, along with co-accused Ajay, who
has been dubbed as her paramour, and
other associates. She has been assigned the
role of conspiracy in the crime, and chargesheeted. She is facing trial for her
husband's murder, and if convicted, the
child's
life
might
be
ruined.
An
apprehension has also been expressed that
the child's life may be in jeopardy, if the
allegations about her involvement in
conspiracy with Ajay to murder her
husband were true. Mr. Agarwal has also
raised an issue about territorial jurisdiction.
He submits that the fact that the child is
residing
in
Mumbai
with
the
sixth
respondent,
there
is
no
territorial
jurisdiction with this Court to entertain this
petition for a writ of habeas corpus.

10. This Court has keenly considered
the rival submissions and perused the
record. So far as the submissions regarding
the territorial jurisdiction of this Court is
concerned, there is ex-facie no force in the
same. It is common ground between parties
that Gyanmati was deprived of Drisha's
custody, when she was remanded to
judicial custody, post arrest at Jhansi. The
3 All. Gyanmati Kushwaha & Anr. Vs. State of U.P. & Ors.
383
minor was taken away at Jhansi by Kamal
Kushwaha, respondent no. 5, her deceased
husband's maternal uncle. It was at Jhansi
that under the orders of the Chief Judicial
Magistrate,
the
minor's
custody
was
entrusted to respondent no. 6, the minor's
grandfather. Therefore, there are clear facts
which give rise to a cause of action at
Jhansi, within the territorial jurisdiction of
this Court. The submission to the contrary,
advanced by Mr. Agarwal is, accordingly,
rejected.

11. Now, this brings the Court face to
face with a situation indeed perplexing. The
law would not certainly countenance
custody of a minor to be handed over to a
parent who is an undertrial, in connection
with the other's murder, and that too, on a
charge of conspiracy with a paramour. On
the other hand, it is the mother's right to her
child's care and custody, and the child's
right, in turn, to her mother's love and
affection, which the law takes care of to the
extent that if the mother were in jail in an
unrelated matter, young children up to the
age of five or six years, depending on
different jail rules in the various states, are
allowed to stay in prison with the
incarcerated mother. If one were to look at
the authority in India and the world over,
there is striking similarity about one
principle, that in custody matters, it is the
welfare of the child that is of paramount
consideration. The statutes may speak
about the right of one parent or the other to
custody, or the right of guardianship, but,
in substance, it is not at all about the right
of a guardian to the minor's custody, or
guardianship; it is all about the minor's
welfare. Section 6(a) of the Act of 1956,
read with its proviso, is also a principle
founded on the wisdom of humanity
transcending generations, that a young
child can be best looked after by her/his
mother. So far as the principles about the
minor's welfare are concerned, these find
eloquent statement in the provisions of
Section 17 of The Guardians and Wards
Act, 18903. The principle that the minor's
welfare is best secured in the mother's
hands and is to be departed from for very
strong reasons, is enunciated by the
Supreme Court in Roxann Sharma v.
Arun Sharma4 thus :

.....There can be no cavil that
when a court is confronted by conflicting
claims of custody there are no rights of the
parents which have to be enforced; the
child is not a chattel or a ball that is
bounced to and fro the parents. It is only
the child's welfare which is the focal point
for consideration. Parliament rightly thinks
that the custody of a child less than five
years of age should ordinarily be with the
Mother and this expectation can be
deviated from only for strong reasons.

12. It must be remarked here that the
holding of their Lordships in Roxann
Sharma
(supra)
acknowledges
the
overbearing principle that for a young
child, the mother is best suited to be
entrusted with her/his custody, but, at the
same time, the remarks in Roxann Sharma
do indicate that for strong reasons, the rule
can be departed from. Once it is the minor's
welfare that is of paramount consideration,
the
particular
circumstances
affecting
parties, their behaviour etc. may tip the
scales to the other side. No doubt, to depart
from the rule, based on a very innate facet
of human experience, in the care and
welfare of their young ones, there must be
very strong reasons. The Supreme Court
particularly considered the impact of one of
the parents being involved in the death of
the other spouse vis-à-vis the question of
the minor's welfare in Nil Ratan Kundu
384 INDIAN LAW REPORTS ALLAHABAD SERIES
and Another v. Abhijit Kundu5, wherein
it was held thus :

62. Now, it has come in evidence
that after the death of Mithu (mother of
Antariksh) and lodging of first information
report by her father against Abhijit (father
of Antariksh) and his mother (paternal
grandmother of Antariksh), Abhijit was
arrested by the police. It was also stated by
Nil Ratan Kundu (father of Mithu) that
mother
of
accused
Abhijit
(paternal
grandmother of Antariksh)absconded and
Antariksh was found sick from the house of
Abhijit.

63. In our considered opinion, on
the facts and in the circumstances of the
case, both the courts were duty-bound to
consider
the
allegations
against
the
respondent herein and pendency of the
criminal case for an offence punishable
under Section 498-A IPC. One of the
matters which is required to be considered
by a court of law is the "character" of the
proposed guardian. In Kirtikumar[(1992) 3
SCC 573 : 1992 SCC (Cri) 778] , this
Court, almost in similar circumstances,
where the father was facing the charge
under Section 498-A IPC, did not grant
custody of two minor children to the father
and allowed them to remain with the
maternal uncle.

64. Thus, a complaint against the
father alleging and attributing the death of the
mother, and a case under Section 498-A IPC
is indeed a relevant factor and a court of law
must address the said circumstance while
deciding the custody of the minor in favour
of such a person. To us, it is no answer to
state that in case the father is convicted, it is
open to the maternal grandparents to make an
appropriate
application
for
change
of
custody. Even at this stage, the said fact
ought to have been considered and an
appropriate order ought to have been passed.

13. There are some very pertinent
remarks in Nil Ratan Kundu (supra) about
the principles governing custody of minor
children, which must be referred to. It has
been observed in Nil Ratan Kundu thus :

Principles governing custody of
minor children

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 should be the welfare and wellbeing 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.

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
3 All. Smt. Reena Vs. State of U.P. & Anr.
385
Nil Ratan Kundu and also in 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. This
facet of the matter apart, the possibility that
the mother might truly be a conspirator in
her
husband's
murder,
predicates
a
personality which would not be beneficial
for the minor in grooming her about her
moral values - a very important aspect of a
child's welfare. On the other hand, if the
mother is innocent and she is acquitted, the
loss, the minor would suffer on account of
deprivation of her mother's care and
custody, cannot be re-compensated, but
nevertheless, it is a reverse that must be
accepted for the minor's surer welfare, in
preference to a contingent better, fraught
with risk.

16. It is made clear that in the event
the mother is acquitted by judgment based
on doubt or otherwise, she would have the
right to move a court of competent
jurisdiction for her daughter's custody,
which would then be decided in accordance
with law.

17. Subject to what has been said
above, this Court does not find any good
ground to make the rule absolute. It is,
accordingly, discharged.

18. In the result, this petition fails and
stands dismissed.
----------

(2021)03ILR A385
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 152 of 2021

Smt. Reena ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Santosh Kumar Pandey, Sri Saurabh
Tripathi