# Hasan Raza @ Taiyab through its Mother Shahnaj (Corpus) & Anr v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-31
- **Case number:** Habeas Corpus Writ Petition No. 983 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasan-raza-taiyab-through-its-mother-shahnaj-corpus-anr-v-state-of-u-p-ors-51594
- **Pages:** 3

## Headnote

G.A.

Habeas Corpus - Child Custody - Parents
Patriae Jurisdiction - Welfare of Minor -
Petition filed by mother (petitioner No. 2)
on behalf of minor son (petitioner No. 1,
corpus) alleging illegal custody by father
(respondent No. 3) since 28.04.2023.
Mother, living separately at her maternal
home due to strained marital relations,
lodged FIRs against father (Crime No.
185/2019 under Sections 498-A, 323, 506
IPC, 3/4 D.P. Act, 4/3 Muslim Women Act;
Crime No. 103/2023 under Sections 420,
34 IPC). Father, a labourer, claimed
willingness
to
reconcile,
but
mother
refused to return to matrimonial home.
Corpus, attached to father, was in his
custody. Court, exercising parens patriae
jurisdiction, held that habeas corpus is
entertainable only if custody is illegal and
against the minor's welfare. No evidence
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
of illegal detention found, and welfare of
the
child,
paramount
under
parens
patriae, did not necessitate change in
custody.
Due
to
disputed
facts
and
pending
criminal
cases
indicating
acrimony, court declined extraordinary
jurisdiction, directing parties to agitate
guardianship claims before appropriate
forum. Petition dismissed, corpus allowed
to
remain
with
father,
with
police
ensuring safe return. Observations prima
facie,
not
affecting
rights
in
other
proceedings. (Paras 7-19)

Petition Dismissed.

## Text

3 All.Hasan Raza @ Taiyab through its Mother Shahnaj (Corpus) & Anr. Vs. State of U.P. & Ors. 1407
The principle is well settled that in such
matters the welfare of the child is of
paramount consideration.

18. In child custody matters,
habeas corpus proceedings may not be
utilized to justify or examine the legality of
the custody. The power of the Court in
granting the writ is qualified only in cases
where detention of a minor is by a person
not entitled to his/her legal custody. For the
exigence of a writ, it would be required to
be proved that the detention of the minor
child is illegal and without any authority of
law, and that the welfare of the child
requires that the present custody should be
changed.

19. In a case where facts are disputed
and a detailed inquiry is required, the Court
may decline to exercise its extraordinary
jurisdiction and may direct the parties to
approach the appropriate legal forum.

20. The legal position in this regard
has been considered by this Court in recent
judgments in Ujaif @ Noor Alam and
others Vs. State of UP and others3 and
Master Mahib Sajjad Masood and
another Vs. State of UP and others4.

21. In the present case, the material
on record, prima facie, does not suggest
that the petitioner-corpus has been illegally
detained by the respondent nos.4 and 5.

22. Having regard to the aforesaid,
the present petition for a writ of habeas
corpus would not be entertainable.

23. The petition stands dismissed
accordingly.
24. The dismissal of the petition
would not preclude the parties from
agitating their rights with regard to
guardianship and custody before the court
concerned where the matters are stated to
be pending.
----------
(2024) 3 ILRA 1407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 983 of 2023

Hasan Raza @ Taiyab through its Mother
Shahnaj (Corpus) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Brijesh Kumar Pandey

Counsel for the Respondents:
G.A.

Habeas Corpus - Child Custody - Parents
Patriae Jurisdiction - Welfare of Minor -
Petition filed by mother (petitioner No. 2)
on behalf of minor son (petitioner No. 1,
corpus) alleging illegal custody by father
(respondent No. 3) since 28.04.2023.
Mother, living separately at her maternal
home due to strained marital relations,
lodged FIRs against father (Crime No.
185/2019 under Sections 498-A, 323, 506
IPC, 3/4 D.P. Act, 4/3 Muslim Women Act;
Crime No. 103/2023 under Sections 420,
34 IPC). Father, a labourer, claimed
willingness
to
reconcile,
but
mother
refused to return to matrimonial home.
Corpus, attached to father, was in his
custody. Court, exercising parens patriae
jurisdiction, held that habeas corpus is
entertainable only if custody is illegal and
against the minor's welfare. No evidence
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
of illegal detention found, and welfare of
the
child,
paramount
under
parens
patriae, did not necessitate change in
custody.
Due
to
disputed
facts
and
pending
criminal
cases
indicating
acrimony, court declined extraordinary
jurisdiction, directing parties to agitate
guardianship claims before appropriate
forum. Petition dismissed, corpus allowed
to
remain
with
father,
with
police
ensuring safe return. Observations prima
facie,
not
affecting
rights
in
other
proceedings. (Paras 7-19)

Petition Dismissed.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Brijesh Kumar Pandey,
learned counsel for the petitioners and Ms.
Divya Ojha, learned A.G.A.-I appearing for
the State respondents.

2. Sri Rajesh Kumar Mishra, learned
counsel, who has filed his Vakalatnama on
behalf of the respondent No. 3, has also
been heard.

3. Pursuant to the rule nisi issued
earlier, the petitioner No. 1-corpus, has
been produced in Court by the respondent
No. 3. They have been accompanied by
Jitendra
Kumar,
S.I.,
P.N.O.
No.
152533151,
Police
Station
Kajuriya,
District Rampur.

4. The petitioner No. 1 (corpus) and
the respondent No. 3, have been identified
by their counsel, Sri Rajesh Kumar Mishra.

5. The police officer has been
identified by Ms. Divya Ojha, learned
A.G.A.-I.

6. The petitioner No. 2, Shahnaj is
also present in Court and has been
identified by her counsel, Sri Brijesh
Kumar Pandey.

7. Learned A.G.A.-I, on the basis of
inquiry made from the petitioner No. 2, in
Court, has submitted that she has submitted
the she is living at her maternal home in
district Rampur and that the petitioner No.
1 (corpus) is presently with respondent No.
3. She has submitted that the custody of the
petitioner No. 1 (corpus) was taken away
from her, on 28.04.2023, and a complaint
in this regard has also been lodged with the
police. On a pointed query, as to whether
she is willing to go to her matrimonial
home, she has replied in negative.

8. Learned A.G.A.-I has also made
an inquiry from the respondent Nos 3, in
Court, and submits that he has stated that
he is working as a labourer in district
Rampur and the petitioner No. 1 (corpus) is
his son and is under his care and custody.
He has stated that the petitioner No. 2 (his
wife) is living separately due to strained
relationship. He has also stated that he is
willing to take back the petitioner No. 2
(his wife), but she is unwilling.

9. Learned A.G.A.-I states that she
has also interacted with the petitioner No. 1
(corpus) and submits that he has shown an
attachment to his father and does not
apparently seem to respond to the petitioner
No. 2.

10. An F.I.R. dated 4.09.2019, is
stated to have been lodged by the petitioner
No. 2, registered as Crime No. 185 of 2019,
under Sections 498-A, 323, 506 I.P.C., 3/4
of the D.P. Act and Section 4/3 of the
Muslim Women (Protection of Rights on
Marriage)
Act,
2019,
Police
Station
Khajuriya, District Rampur, in which the
charge sheet has been submitted. Another
3 All. Anil Kumar Vs. State of U.P. & Anr.
1409
F.I.R. dated 03.11.2023 is also stated to
have been lodged by the respondent No. 2,
registered as Case Crime No. 103 of 2023,
under Sections 420 and 34 I.P.C., Police
Station Khajuriya, District Rampur, in
which the respondent No. 3 has been
named as an accused.

11. The pendency of the aforesaid
criminal cases is indicative of the acrimony
and the strained relationship between the
parties.

12. 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.

13. 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.

14. In a child custody matter, a writ of
habeas corpus would be entertainable only
where it is established that the detention of
the minor child is illegal and without
authority of law. In a writ court, where
rights are determined on the basis of
affidavits, in a case where the court is of a
view that a detailed enquiry would be
required, it may decline to exercise the
extraordinary jurisdiction and direct the
parties to approach the appropriate forum.

15. Having regard to the entirety
of the facts, the rule nisi issued earlier is
discharged.

16. The habeas corpus petition is
dismissed.

17. The petitioner No. 1 (corpus)
would be at liberty to go along with the
respondent No. 3 (his father) to the place
from where he has been brought.

18. They shall be accompanied by the
police officer, in safety, but free.

19. It is made clear that the
observations made, hereinabove, are prima
facie in nature and would not preclude the
parties from agitating their claims for
guardianship and custody before the
appropriate forum.
----------
(2024) 3 ILRA 1409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1059 of
2023

Anil Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Grijesh Kumar Shukla