# Krishnakant Pandey (corpus) & Ors v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** Habeas Corpus Writ Petition No. 174 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishnakant-pandey-corpus-ors-v-state-of-u-p-ors-46939
- **Pages:** 4

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506, 392 -
Domestic Violence Act - Section 12 - Code
of criminal procedure, 1973 - Section 125
- Dowry prohibition Act,1961 - Sections
3/4 - Hindu Marriage Act - Section 9 - Writ
of Habeas Corpus -custody of minor
children - an application seeking a writ of
habeas corpus for custody of minor
children - principal consideration for the
court would be to ascertain - whether the
custody of the children can be said to be
unlawful and illegal - whether their
welfare requires that the present custody
should be changed and the children
should be handed over in the care and
custody of somebody else other than in
whose custody they presently are. (Para -
13)
296 INDIAN LAW REPORTS ALLAHABAD SERIES
By mean of the present petition the petitioner
no.3 stating himself to be the father of
petitioner nos. 1 and 2 (minor children of age
about 9 and 7 years respectively), has sought to
assert that the two children are in illegal custody
of Respondent No.4, who is their mother. (Para
-2)

HELD: - In a case, as the present one, once it
is ascertained that the private respondent is
none other than the biological mother of the
minor children, the custody of the children with
their mother cannot, prima facie, be stated to
be illegal. (Para -17)

Habeas corpus petition dismissed. (E-6)

List of Cases cited: -

## Text

3 All. Krishnakant Pandey (corpus) & Ors. Vs. State of U.P. & Ors.
295
vehicle admits the accident, in such cases,
no
further
enquiry
regarding
the
involvement of the vehicle is necessary.
Thus, it is clear that when owner of the
vehicle remained ex-parte, despite service
of notice, then as per the law of pleading,
there is deemed admission on the part of
the owner of the vehicle admitting the
factum of the accident, coupled with the
fact that PW3 has not only proved the
factum of accident, but also fact of
negligence of the driver of the offending
truck.

10. As far as issue of retrospective
operation of the amendment in Rule 204(7) is
concerned, law is clear in this regard and it
provides that courts would undoubtedly rely
very strongly against applying a new Act to a
pending action, when language of the statute
does not compel them to do so. (United
Provinces vs. Mt. Atiqa Begum), AIR 1941
FC 16. In case of Garikapatti Veeraya vs. N.
Subbiah Choudhury; AIR 1957 SC 540,
P.553 (Para-25), it has been held that the
golden rule of construction is that, in absence
of anything in the enactment to show that it is
to have retrospective operation, it cannot be
so construed as to have the effect of altering
the law applicable to a claim in litigation at
the time when the Act was passed. In view of
such settled principle of law, it is apparent
that amendment in U.P. Motor Vehicle Rules
making it mandatory to implead the driver of
the vehicle involved in the accident shall not
be retrospective in operation, but only
beneficial provision can have retrospective
application, as has been applied by Hon'ble
Division Bench of this Court in case of ICICI
Lombard General Insurance Co. Ltd. vs.
Smt. Reena Tyagi and Others (supra).

11.

Thus,
this
plea
of
nonimpleadment of driver having adverse
impact on the case of the claimants will not
be applicable to the present facts and
circumstances of the case, therefore,
insurance
company
having
failed
to
substantiate both the grounds namely that
of
contributory
negligence
and
retrospective application of the amended
Rules, appeal fails and is dismissed.
----------
(2021)03ILR A295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 174 of 2021

Krishnakant Pandey (corpus) & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kuldeep Singh, Sri Vipin Vinod

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506, 392 -
Domestic Violence Act - Section 12 - Code
of criminal procedure, 1973 - Section 125
- Dowry prohibition Act,1961 - Sections
3/4 - Hindu Marriage Act - Section 9 - Writ
of Habeas Corpus -custody of minor
children - an application seeking a writ of
habeas corpus for custody of minor
children - principal consideration for the
court would be to ascertain - whether the
custody of the children can be said to be
unlawful and illegal - whether their
welfare requires that the present custody
should be changed and the children
should be handed over in the care and
custody of somebody else other than in
whose custody they presently are. (Para -
13)
296 INDIAN LAW REPORTS ALLAHABAD SERIES
By mean of the present petition the petitioner
no.3 stating himself to be the father of
petitioner nos. 1 and 2 (minor children of age
about 9 and 7 years respectively), has sought to
assert that the two children are in illegal custody
of Respondent No.4, who is their mother. (Para
-2)

HELD: - In a case, as the present one, once it
is ascertained that the private respondent is
none other than the biological mother of the
minor children, the custody of the children with
their mother cannot, prima facie, be stated to
be illegal. (Para -17)

Habeas corpus petition dismissed. (E-6)

List of Cases cited: -

1. Mohammad Ikram Hussain Vs St. of U.P. &
ors., AIR 1964 SC 1625

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

3. Nithya Anand Raghvan Vs St. (NCT of Delhi)
& anr., (2017) 8 SCC 454

4. Sayed Saleemuddin Vs Dr. Rukhsana & ors. ,
(2001) 5 SCC 247

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

6. Rachhit Pandey (Minor) & anr. Vs State of
U.P. & 3 ors. , 2021 (2) ADJ 320

7. Master Manan @ Arush Vs St. of U.P. & ors.,
(Habeas Corpus W. P. no. 1026 /2019, decided
on 18.02.2021)

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

1. Heard Sri Kuldeep Singh, learned
counsel for the petitioners and Sri Arvind
Kumar, learned AGA for the Staterespondents.

2. By mean of the present petition the
petitioner no.3 stating himself to be the
father of petitioner nos. 1 and 2 (minor
children of age about 9 and 7 years
respectively), has sought to assert that the
two children are in illegal custody of
Respondent No.4, who is their mother.

3. The principal grievance which is
sought to be raised by the counsel for the
petitioners is with regard to the custody of
two minor children and a claim for grant of
visitation rights. Proceedings under Section
12 of the Domestic Violence Act and
Section 125 Cr.P.C. initiated by the
Respondent No.4 are also stated to be
pending. An FIR under Sections 498A,
323, 504, 506, 392 IPC and 3/4 of Dowry
Prohibition Act is stated to have been
lodged by the respondent no. 4 which was
registered as Case Crime No. 399 of 2013
and the criminal case is said to be pending.

4. As per the pleadings in the petition
the Respondent No.4 (wife) left her
matrimonial home on 15.07.2013 on
account of a matrimonial discord and a
petition under Section 9 of the Hindu
Marriage Act registered as Case No. 164 of
2013 (Manoj Kumar Pandey vs. Priya
Pandey) was filed before the Family Court
which is stated to be pending.

5. It is sought to be contended that
some efforts for re-conciliation between the
parties were made sometime in the year
2019.
However,
the
fact
remains
undisputed that the Respondent No.4 (wife)
has not returned to her matrimonial home
and that she is living separately with her
minor children.

6. Learned AGA appearing for the
State-respondents submits that in view of
admitted fact that respondent no.4 left her
matrimonial home way back in the year
2013 along with her minor children and is
3 All. Krishnakant Pandey (corpus) & Ors. Vs. State of U.P. & Ors.
297
living separately it cannot be said that the
minor children are any kind of illegal
custody. He further pointed out that a
petition for restitution of conjugal rights
has been filed by the petitioner no.3
(husband) which is pending and also cases
under the Domestic Violence Act, Section
125 Cr.P.C. and also a criminal case
registered pursuant to an FIR lodged by the
Respondent No.4 (wife) are also pending.

7. In a petition seeking a writ of habeas
corpus in a matter relating to a claim for
custody of a child, the principal issue which
is to be taken into consideration is as to
whether from the facts of the case, it can be
stated that the custody of the child is illegal.

8. 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 vs. State of U.P. and others1 and
Kanu Sanyal vs. District Magistrate
Darjeeling2.

9. 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 becomes
entitled to the writ as of right.

10. 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 Nithya Anand Raghvan v
State (NCT of Delhi) and another3, and it
was held that the principal duty of the court in
such matters is to ascertain whether the
custody of the child is unlawful and illegal
and whether the welfare of the child requires
that his present custody should be changed
and the child be handed over to the care and
custody of any other person.

11. Taking a similar view in the case of
Sayed Saleemuddin vs. Dr. Rukhsana and
others4, 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.

12. The question of maintainability of a
habeas corpus petition under Article 226 of
the Constitution of India for custody of a
minor was examined in Tejaswini Gaud and
others vs. Shekhar Jagdish Prasad Tewari
and others5, and it was held that the petition
would be maintainable where detention by
parents or others is found to be illegal and
without any authority of law and the
extraordinary remedy of a prerogative writ of
habeas corpus can be availed in exceptional
cases where ordinary remedy provided by the
law is either unavailable or ineffective.

13. In an application seeking a writ of
habeas corpus for custody of minor children,
as is the case herein, the principal
consideration for the court would be to
ascertain whether the custody of the children
can be said to be unlawful and illegal and
whether their welfare requires that the present
custody should be changed and the children
should be handed over in the care and
custody of somebody else other than in
whose custody they presently are.

14. Proceedings in the nature of
habeas corpus may not be used to examine
298 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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. 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 court. The aforementioned legal
position has been considered in recent decisions
of this Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6 and
Master Manan @ Arush vs. State of U.P.
and others7.

16. In the present case it is undisputed
that the respondent no. 4 (wife) along with
her minor children, is living separately from
the petitioner no. 3 (husband) since the year
2013.

17. In a petition for a writ of habeas
corpus, the Court would be required to
examine, at the threshold, whether the minor
is in lawful or unlawful custody of the private
respondent named in the petition. In a case, as
the present one, once it is ascertained that the
private respondent is none other than the
biological mother of the minor children, the
custody of the children with their mother
cannot, prima facie, be stated to be illegal.

18. In the facts of the case, as aforesaid,
only in exceptional situation, the custody of
the minor children may be directed to be
taken away from the mother for being given
to any other person, including the father of
the children, in exercise of writ jurisdiction.

19. It may be reiterated that a writ of habeas
corpus, 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.

20. Proceedings for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act
initiated on a petition stated to have been filed by
the petitioner no. 3 (husband), being pending, any
claim with regard to ancillary reliefs pertaining to
custody or visitation rights may be agitated in the
said proceedings and the present petition seeking a
writ of habeas corpus is not liable to be entertained
in the facts of the case.

21. The petition stands accordingly
dismissed.
----------
(2021)03ILR A298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2021

BEFORE

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

Habeas Corpus Writ Petition No. 192 of 2021

Master Tarun @ Akchhat Kumar & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajesh Maurya

Counsel for the Respondents:
A.G.A.

Father
claims
custody
of
his
minor
children-claiming
custody
with
their
mother as illegal-custody of minor is