# Malav Dwivedi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Habeas Corpus Writ Petition No. 330 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malav-dwivedi-v-state-of-u-p-ors-51504
- **Pages:** 11

## Headnote

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(mother) sought habeas corpus for custody of
minor
son
(detenue)
detained
by
father
(respondent No. 4) and relatives, alleging illegal
detention post-marital discord. Court held: (1)
Habeas corpus maintainable for child custody
where detention is unlawful or welfare demands
change; paramount consideration is child's best
interest, not parental legal rights (Nithya Anand
Raghavan Vs St. (NCT of Delhi), (2017) 8 SCC
454). (2) Child's welfare includes psychological,
emotional, and developmental needs; custody
with father (natural guardian under Section 6 of
Hindu Minority and Guardianship Act) lawful, as
no
illegality
or
imminent
harm
shown
(Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112). (3) Marital discord and FIRs (Case
Crime No. 560/2022 under Sections 323, 498-A,
504, 506 I.P.C. and Dowry Prohibition Act) do
not justify disrupting child's stable custody with
father; mother entitled to visitation rights
(Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, Criminal Appeal No. 838 of 2019). (4)
No evidence of mother's financial stability or
capacity for child's welfare; father's resources
adequate. (5) Child to remain with father;
mother granted visitation every third Sunday
(10:30 A.M.-2:30 P.M.) with prior notice, and
daily video calls (7:00-7:30 P.M.); liberty to seek
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
89
custody under Guardians and Wards Act.
Petition disposed of. (Paras 16-26)

Habeas Corpus Disposed of.

Case Law Cited:

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES
with so much of time gone by, any marital
love or affection, which may have been
between the parties, seems to have dried
up. This is a classic case of irretrievable
breakdown of marriage. In view of the
Constitution Bench Judgment of this court
in Shilpa Sailesh v. Varun Sreenivasan,
2023 SCC OnLine SC 544 which has held
that in such cases where there is
irretrievable breakdown of marriage then
dissolution of marriage is the only solution
and this Court can grant a decree of
divorce in exercise of its power under
Article 142 of the Constitution of India.

11. We therefore declare the
marriage to have broken down irretrievably
and therefore in exercise of our jurisdiction
under Article 142 of the Constitution of
India we are of the considered opinion that
this
being
a
case
of
irretrievable
breakdown of marriage must now be
dissolved by grant of decree of divorce."

17. Hon'ble Apex Court in Joydeep
Majumdar vs. Bharti Jaiswal Majumdar,
2021 (1) ARC 505 (SC) making reference
to the Hon'ble Apex Court in the case of
Samar Ghosh vs. Jaya Ghosh, (2007) 4
SCC 511 has granted divorce on the ground
mental cruelty. In the present case, undue
harassment and thus, mental cruelty has
been clearly established, therefore, the
husband was rightly granted divorce by the
Court below.

18. In view of the discussion made
hereinabove, we do not find any good
ground
to
set
aside
the
judgement
impugned herein.

19. Present appeal lacks merit and is
accordingly dismissed.
----------
(2024) 2 ILRA 88
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 330 of 2022

Malav Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shobh Nath Pandey

Counsel for the Respondents:
G.A., Dr. Manoj Kumar Dubey

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(mother) sought habeas corpus for custody of
minor
son
(detenue)
detained
by
father
(respondent No. 4) and relatives, alleging illegal
detention post-marital discord. Court held: (1)
Habeas corpus maintainable for child custody
where detention is unlawful or welfare demands
change; paramount consideration is child's best
interest, not parental legal rights (Nithya Anand
Raghavan Vs St. (NCT of Delhi), (2017) 8 SCC
454). (2) Child's welfare includes psychological,
emotional, and developmental needs; custody
with father (natural guardian under Section 6 of
Hindu Minority and Guardianship Act) lawful, as
no
illegality
or
imminent
harm
shown
(Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112). (3) Marital discord and FIRs (Case
Crime No. 560/2022 under Sections 323, 498-A,
504, 506 I.P.C. and Dowry Prohibition Act) do
not justify disrupting child's stable custody with
father; mother entitled to visitation rights
(Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, Criminal Appeal No. 838 of 2019). (4)
No evidence of mother's financial stability or
capacity for child's welfare; father's resources
adequate. (5) Child to remain with father;
mother granted visitation every third Sunday
(10:30 A.M.-2:30 P.M.) with prior notice, and
daily video calls (7:00-7:30 P.M.); liberty to seek
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
89
custody under Guardians and Wards Act.
Petition disposed of. (Paras 16-26)

Habeas Corpus Disposed of.

Case Law Cited:

1.
Kanu
Sanyal
Vs
District
Magistrate,
Darjeeling, (1973) 2 SCC 674 (Para 19)

2. Sayed Saleemuddin Vs Rukhsana, (2001) 5
SCC 247 (Para 19)

3. Elizabeth Dinshaw Vs Arvand M. Dinshaw,
(1987) 1 SCC 42 (Para 19)

4. Nithya Anand Raghavan Vs State (NCT of
Delhi), (2017) 8 SCC 454 (Para 19)

5. Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112 (Para 20)

6. Shradha Kannaujia Vs St. of U.P., Habeas
Corpus No. 716 of 2020 (Para 20)

7. Master Manan @ Arush Vs St. of U.P.,
decided on 18.02.2021 (Para 20)

8. Vahin Saxena Vs St. of U.P., Habeas Corpus
No. 467 of 2021 (Para 21)

9. Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, Criminal Appeal No. 838 of 2019 (Para
20)

(Delivered by Hon'ble Shamim
Ahmed, J.)

1. Heard Shri Shobh Nath Pandey,
learned Counsel for the petitioner, Dr.
Manoj Kumar Dubey, learned Counsel for
respondent Nos.4 to 8 and Shri Ashok
Kumar Singh, learned A.G.A-I for the
State-respondent Nos.1 to 3.

2. The petitioner- Smt. Sudha
Dwivedi has filed this Habeas Corpus
petition seeking following reliefs:-

"i) issue a writ, order or
direction in the nature of Habeas Corpus
commanding the opposite party Nos.4 to 8
to produce the corpus of detenue, namely
Malav Dwivedi son of Shwetang Dwivedi
who is in the illegal detention of the
opposite party No.4 to 8, before this
Hon'ble Court.

ii) issue a writ, order or direction
in
the
nature
of
Habeas
Corpus
commanding and directing the opposite
parties to get released the detenue Malav
Dwivedi from the illegal detention of
opposite party No.4 to 8 forthwith, and
after recording his statement set him free at
his liberty, forthwith.

iii) issue any other suitable order
or direction which this Hon'ble Court may
deem just, fit and proper under the facts
and circumstances of the case.

iv) Allow the writ petition with
cost."

3. The Coordinate Bench of this Court
on 14.10.2022 had passed the following
order:

"Dr. Manoj Kumar Dubey filed
his Vakalatnama on behalf of respondents
no. 4 to 7 and the same is taken on record.

He
further
submits
that
respondent no. 8 is living in Surat (Gujrat)
and the Vakalatnama on her behalf shall
also been filed very soon.

It is further submitted by him that
two weeks' time be granted for the purpose
of filing counter affidavit in response to the
petition filed by the petitioner.

Having regard to the request
made
by
learned
counsel
for
the
respondents no. 4 to 7 two weeks' further
time is granted for the purpose of filing
counter affidavit.

Accordingly list on 3.11.2022.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

It
is
further
provided
that
respondent
no.4,
namely,
Shwetang
Dwivedi shall bring the corpus/ detenue,
namely, Master Malav Dwivedi with him to
the Mediation Centre of this Court on
18.10.2022 at 11.A.M. in the Mediation
Centre of this Bench and the Incharge
Mediation Centre of this Bench shall
provide a space to the next friend/ mother
of the corpus, namely, Smt. Sudha Dwivedi
to interact with the corpus/ detenue Master
Malav Dwivedi for about one hour. It is
also provided that during the meeting with
the detenue the Incharge Mediation Centre
shall permit the mother of the corpus Smt.
Sudha Dwivedi to offer some gifts or
eatable items to the corpus and no
objection in this regard shall be raised by
opposite party no.4.

A
copy
of
this
order
be
immediately provided to the Incharge
Mediation Centre of this Bench.

This Court hope and trust that the
order pertaining to he meeting of the
corpus with his mother, namely, Sudha
Dwivedi on 18.10.2022 at 11.00 A.M. in the
mediation centre of this Court shall be
complied in letter and spirit by the opposite
party no.4."

4. On 03.08.2023 the Coordinate
Bench of this Court had passed the
following order:

"1. A preliminary objection has
been raised by respondent No.4 regarding
maintainability of the petition. It is
submitted
that
the
detenue
is
with
respondent No.4 who is his natural
guardian being father and it cannot be said
that it is a case of illegal detention.

2.Rebutting
this
submission,
learned counsel for the petitioner has relied
on judgment of Supreme Court in Yashita
Sahu versus State of Rajasthan and others
passed in Crl. Appeal No.127 of 2020
(Special Leave Petition(Crl) No.7390 of
2019) (Emphasis is on para 9) wherein
similar objection was rejected by the
Supreme Court and the appeal was
entertained.

3.In view of the above, the
objection raised by respondent No.4 is
rejected.

4.Both
the
deponent
and
respondent No.4 have levelled allegation
against
each
other
that
both
are
unemployed and have no source of
livelihood. The court in a habeas corpus
petition is to ensure overall welfare of the
child. Neither the deponent nor the
respondent No.4 has disclosed his/her
source of income while filing affidavit(s) to
show that they have at least minimum
resources to take care of vaccination,
medical needs and other basic needs of the
detenue.

5.Accordingly, the deponent and
respondent No.4 both are directed to file
supplementary affidavit stating their source
of income. They shall also file their income
tax return, if any.

6.Learned
counsel
for
the
deponent petitioner submits
that the
deponent being the mother and natural
guardian of the child cannot be deprived
her visiting rights.

7.The submission carries weight.

8.It
is
provided
that
the
respondent No.4 Shwetang Dwivedi shall
bring the detenue Master Malav Dwivedi
with him to Mediation Centre of this Court
on 7.8.2023 at 03.00 p.m. and the Incharge
Mediation Centre shall provide a space to
the next friend/mother of the corpus,
namely Smt. Sudha Dwivedi to interact with
the detenue for about two hours. It is
further provided that during the meeting
with the detenue, the incharge Mediation
Centre shall permit Smt Sudha Dwivedi to
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
91
offer gift, if any or eatable items to the
corpus and no objection in this regard shall
be raised by respondent No.4.

9.List on 18.8.2023."

5. Learned counsel for the petitioner
submitted that the petitioner- Smt. Sudha
Dwivedi got married to respondent No.4Shwetang Dwivedi, in Faizabad (now
Ayodhya) on 29.01.2015 as per Hindu Rites
and Ceremonies. Thereafter, due to their
wedlock, one male child namely Master
Malav Dwivedi was born on 11.02.2019
and after the child was born the relationship
between the husband and wife started to
turn absurd and regular dispute arose.

6. Learned counsel for the petitioner
further submitted that after some time the
behavior of respondent No.4 turned very
abnormal and the petitioner came under
suspicion and started to feel very unsafe
regarding the welfare of her child.

7. Learned Counsel for the petitioner
further submitted that since the time of
marriage the respondent Nos.4 to 8 used to
harass and torture the petitioner for want of
dowry as well as for other filthy reasons
and used to level filthy allegations on her in
the name of her family members, thereafter,
the respondent No.4 brutally tortured the
petitioner and ousted her from her
matrimonial home forcibly on 03.09.2022
and kept the child, detenue-Malav Dwivedi
in his illegal detention.

8. Learned counsel for the petitioner
further submitted that the petitioner moved
a complaint on 04.09.2022 before the
Station House Officer concerned for giving
custody of her son from the illegal
detention of respondent Nos.4 to 8,
thereafter, the petitioner lodged a First
Information Report against the respondent
Nos.4 to 8 on 05.09.2022 which was
registered as Case Crime No.0560/2022,
under Section 323, 498-A, 504 and 506
I.P.C. and Section 3/4 Dowry Prohibition
Act
at
Police
Station-Gomti
Nagar,
District-Lucknow in regard to harassment
done upon her by respondent Nos.4 to 8
and also requested therein that the custody
of her son may be given to her.

9. Learned counsel for the petitioner
further submitted that the petitioner has
also given an application before the
respondent No.2 i.e. Commissioner of
Police, Lucknow but of no avail and till
date no action has been taken in regard to
release of the detenue from the illegal
detention by the respondent Nos.4 to 8.

10. Learned counsel for the petitioner
further submitted that the petitioner brought
into the notice about the entire incident to
the concerned police authorities, but they
did not conduct the investigation to locate
the whereabouts of the child of petitioner.
He further submitted that the respondent
No.4 has no love and affection towards the
child and the petitioner being mother is
legally entitled to get the custody of her
child being natural guardian.

11. Learned counsel for the petitioner
further submitted that the petitioner is a
Fashion Designer and presently she is
working as Assistant Fashion Designer in
Greenwear Fashion Pvt. Ltd., 301-389,
Safedabad, Faizabad Road, Barabanki and
drawing a salary of about Rs.15,000/- per
month as well as other perks and
incentives.
He further
submitted
the
petitioner is living with her father and
mother at 437, Vishwanath Puram Colony,
Matiyari, Chinhat, Lucknow and they have
92 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient property and asests and as such
the petitioner is in good position to take
good care of her child.

12. Learned counsel for the petitioner
further prayed for handing over the custody
of said minor child to the petitioner who is
biological mother of minor child, so that
the child may live with her mother with his
free will and the present Habeas corpus
petition may be allowed by this Hon'ble
Court.

13. Per Contra, learned counsel for
the respondent Nos.4 to 8 filed counter
affidavit and one supplementary affidavit,
which are on record and submits that the
petitioner-Smt. Sudha Dwivedi is a most
irresponsible lady who does not have any
respect or love and care for any relation
neither for her husband and nor for her
minor child. The petitioner left the house of
the respondent No.4 in a pre-planned
manner
taking
all
her
educational
documents, ornaments, clothes, jewelry etc.
while the detenue was playing with his
grand-parents in separate house and the
respondent No.4 was in Court, she left the
house after locking the door possessing the
keys. The petitioner and her maternal uncle
and her father tried to mislead the police
after lodging the first information and
compelled them to arrest the respondent
No.4 and despite 'cooling period' the police
mischievously obtained N.B.W. but the
learned C.J.M. has recalled and set-aside
the same when it was presented before him.
The petitioner is suffering from genetic
mental disorder i.e. Border Line Personality
Disorder. He further submitted that the
respondent No.4 is working in Lucknow
Development Authority and is getting good
salary and at this verge of services, no
liabilities is upon him except the welfare of
detenue, all expenses, study, foods, clothes
of detenue is arranged by the respondent
No.4, thus, he submitted that the present
petition is nothing but a ploy to harass the
respondent No.4 and his family members
so that in grab of some order by this Court,
the petitioner may torture the respondent
Nos.4 to 8 and blackmail them to
compromise the situation in fear of
harassment and torture.

14.

Learned
counsel
for
the
respondent Nos.4 to 8 further submitted
that the respondent Nos.4 to 8 do not have
any objection if the petitioner-Smt. Sudha
Dwivedi wishes to visit the child in
Lucknow, provided the same does not
create any dispute.

15. Shri Ashok Kumar Singh, learned
A.G.A-I has also supported the argument
advanced by learned counsel for the
respondent Nos.4 to 8.

16. After considering the arguments
as advanced by learned counsel for the
parties this Court finds that minor child
should not be deprived of the love and
affection of both the parents as deprivation
results in a grave physiological impact
upon the impressionable and innocent
disposition of a child in his formative years
and in this case the minor child is being
deprived of love an affection of his parents
and the parents are not able to interact with
their child affectionately. Whenever a
question arises before a court pertaining to
the custody of the minor child, the matter is
to be decided not on consideration of the
legal rights of the parties but on the sole
and predominant criterion of what would
best serve the interest and welfare of the
child. The primary object of a Habeas
Corpus petition, as applied to minor child,
is to determine in whose custody the best
interests of the child will probably be
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
93
advanced. Further the question of custody
cannot be determined by weighing the
economic circumstances of the contending
parties. The matter will not be determined
solely on the basis of the physical comfort
and material advantages that may be
available in the home of one contender or
the other. It is further held that the welfare
of the child must be decided on a
consideration
including
the
general
psychological, spiritual and emotional
welfare of the child. While resolving the
disputes between the rival claimants for the
custody of a child, the aim of the Court
must be to choose the course which will
best provide for the healthy growth,
development and education of the child so
that he or she will be equipped to face the
problems of life as a mature adult.

17. In the present case it is not in
dispute that the petitioner- Smt. Sudha
Dwivedi got married to respondent No.4Shewtang Dwivedi. Thereafter, due to their
wedlock, one male child namely Master
Malav Dwivedi was born 11.02.2019. After
some time the relationship between the
husband and wife started to turn absurd and
regular dispute arose. Thereafter, the
petitioner and respondent No.4 tried to
settle their dispute on the their own terms
but all in vain and the petitioner lodged an
F.I.R., which was registered as Case Crime
No.0560/2022, under Section 323, 498-A,
504 and 506 I.P.C. and Section 3/4 Dowry
Prohibition Act at Police Station-Gomti
Nagar, District-Lucknow in regard to
harassment done upon her by respondent
Nos.4 to 8 and also requested therein that
the custody of her son may be given to her,
thus, this type of situation where parents of
the child are unable to resolve their dispute
keeping in mind the future of their child
gives
a
negative
impact
on
the
psychological behavior of the minor child
and is also not in the welfare of the child in
the long run.

18. In the case of Nithya Anand
Raghvan v State (NCT of Delhi) and
another 2017 8 SCC 454, it was held by
Hon'ble Apex Court 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.
The
relevant
observations made in para 44 to 47 in
the judgement are being reproduced
herein below:

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District Magistrate, Darjeeling, (1973) 2
SCC 674, has held that habeas corpus was
essentially a procedural writ dealing with
machinery of justice. The object underlying
the writ was to secure the release of a
person who is illegally deprived of his
liberty. The writ of habeas corpus is a
command addressed to the person who is
alleged to have another in unlawful
custody, requiring him to produce the body
of such person before the court. On
production of the person before the court,
the circumstances in which the custody of
the person concerned has been detained
can be inquired into by the court and upon
due inquiry into the alleged unlawful
restraint pass appropriate direction as may
be deemed just and proper. The High Court
in such proceedings conducts an inquiry for
immediate determination of the right of the
person's freedom and his release when the
detention is found to be unlawful.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

45. In a petition for issuance of a
writ of habeas corpus in relation to the
custody of a minor child, this Court in
Sayed Saleemuddin v. Rukhsana, (2001) 5
SCC 247, has held that the principal duty
of the court is to ascertain whether the
custody of child is unlawful or 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. While
doing so, the paramount consideration
must be about the welfare of the child. In
Elizabeth Dinshaw v. Arvand M. Dinshaw,
(1987) 1 SCC 42, it is held that in such
cases the matter must be decided not by
reference to the legal rights of the parties
but on the sole and predominant criterion
of what would best serve the interests and
welfare of the minor. The role of the High
Court in examining the cases of custody of
a minor is on the touchstone of principle of
parens patriae jurisdiction, as the minor is
within the jurisdiction of the Court relied
upon by the appellant]. It is not necessary
to
multiply
the
authorities
on
this
proposition.

46. The High Court while dealing
with the petition for issuance of a writ of
habeas corpus concerning a minor child, in
a given case, may direct return of the child
or decline to change the custody of the
child keeping in mind all the attending facts
and circumstances including the settled
legal position referred to above. Once
again, we may hasten to add that the
decision of the court, in each case, must
depend on the totality of the facts and
circumstances of the case brought before it
whilst considering the welfare of the child
which is of paramount consideration. The
order of the foreign court must yield to the
welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for
mere enforcement of the directions given by
the foreign court against a person within its
jurisdiction and convert that jurisdiction
into that of an executing court. Indubitably,
the writ petitioner can take recourse to
such other remedy as may be permissible in
law for enforcement of the order passed by
the foreign court or to resort to any other
proceedings as may be permissible in law
before the Indian Court for the custody of
the child, if so advised.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at
the threshold whether the minor is in lawful
or unlawful custody of another person
(private respondent named in the writ
petition). For considering that issue, in a
case such as the present one, it is enough to
note that the private respondent was none
other than the natural guardian of the
minor being her biological mother. Once
that fact is ascertained, it can be presumed
that the custody of the minor with his/her
mother is lawful. In such a case, only in
exceptionable situation, the custody of the
minor (girl child) may be ordered to be
taken away from her mother for being given
to any other person including the husband
(father of the child), in exercise of writ
jurisdiction. Instead, the other parent can
be asked to resort to a substantive
prescribed remedy for getting custody of
the child."

Similarly,
in
the
case
of
Dhanwanti Joshi Vs Madhav Unde (
1998) 1 SCC 112, the Hon'ble Apex Court
was pleased to observe in para 27, 29, 30 of
the judgment as under:

"27........However, in view of the
fact that the child had lived with his mother
in India for nearly twelve years, this Court
held that it would not exercise a summary
jurisdiction to return the child to the United
States of America on the ground that its
removal from USA in 1984 was contrary to
the orders of US courts. It was also held
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
95
that whenever a question arises before a
court pertaining to the custody of a minor
child, the matter is to be decided not on
considerations of the legal rights of the
parties but on the sole and predominant
criterion of what would best serve the
interest of the minor." (emphasis supplied)
Again in paragraphs 29 and 30, the threejudge bench observed thus:-

"29. While dealing with a case of
custody of a child removed by a parent
from
one
country
to
another
in
contravention of the orders of the court
where the parties had set up their
matrimonial home, the court in the country
to which the child has been removed must
first consider the question whether the
court could conduct an elaborate enquiry
on the question of custody or by dealing
with the matter summarily order a parent to
return custody of the child to the country
from which the child was removed and all
aspects relating to the child's welfare be
investigated in a court in his own country.
Should the court take a view that an
elaborate enquiry is necessary, obviously
the court is bound to consider the welfare
and happiness of the child as the
paramount consideration and go into all
relevant aspects of welfare of the child
including stability and security, loving and
understanding care and guidance and full
Nithya Anand Raghavan vs State Of Nct Of
Delhi on 3 July, 2017 development of the
child's character, personality and talents.
While doing so, the order of a foreign court
as to his custody may be given due weight;
the weight and persuasive effect of a
foreign judgment must depend on the
circumstances of each case.

30. However, in a case
where the court decides to exercise its
jurisdiction summarily to return the child to
his own country, keeping in view the
jurisdiction of the court in the native
country which has the closest concern and
the most intimate contact with the issues
arising in the case, the court may leave the
aspects relating to the welfare of the child
to be investigated by the court in his own
native country as that could be in the best
interests of the child. The indication given
in Mckee v. McKee that there may be cases
in which it is proper for a court in one
jurisdiction to make an order directing that
a child be returned to a foreign jurisdiction
without investigating the merits of the
dispute relating to the care of the child on
the ground that such an order is in the best
interests of the child has been explained in
L (Minors), In re and the said view has
been approved by this Court in Dhanwanti
Joshi. Similar view taken by the Court of
Appeal in H. (Infants), in re has been
approved by this Court in Elizabeth
Dinshaw."

Similarly, in the case of
Shradha Kannaujia (Minor) and Another
,Vs State of U.P. and 5 others in Habeas
Corpus No. 716 of 2020 a co-ordinate
Bench of this Hon'ble court was pleased to
observe as under:

"It is well settled that writ of
habeas corpus is a prerogative writ and an
extraordinary remedy. 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 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."

19. The question of maintainability of
a Habeas Corpus petition under Article 226
of the Constitution of India for custody of a
96 INDIAN LAW REPORTS ALLAHABAD SERIES
minor was examined by Hon'ble Apex
Court in the case of Tejaswini Gaud and
others vs. Shekhar Jagdish Prasad Tewari
and others Criminal Appeal No. 838 of
2019 order dated 06.05.2019 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.

The observations made in the
judgment in this regard are as follows:-

"14. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an effective
means of immediate release from an illegal
or improper detention. The writ also
extends its influence to restore the custody
of a minor to his guardian when wrongfully
deprived of it. The detention of a minor by
a person who is not entitled to his legal
custody is treated as equivalent to illegal
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

x x x

. 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 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."

20. A co-ordinate Bench of this in
Master Manan @ Arush Vs State of U.P &
8 others, decided on 18.02.2021 was
pleased to observe in para 16 and 17 as
under :
2 All. Malav Dwivedi Vs. State of U.P. & Ors.
97

"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
Guardian ship Act, 1956, cannot be said to
be prima facie illegal."

21. Another co-ordinate Bench of this
Court in Habeas Corpus Writ Petiton No.
467 of 2021 Vahin Saxena ( Minor
Corpus) ans Another Vs State of U.P. and
three others decided on 27-08-2021 was
pleased to observe in para 22 as under:

"22. In a child custody matter, a
writ
of
habeas
corpus
would
be
entertainable where it is established that
the detention of the minor child by the
parent or others 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.
The remedy ordinarily in such matters
would lie under the Hindu Minority and
Guardianship
Act,
195613
or
the
Guardians and Wards Act, 189014, as the
case may be."

22. It is, therefore, seen that 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 the
welfare of the child 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 the child presently is.

23. It is well settled law by a catena of
judgments that while deciding the matter of
custody of child, primary and paramount
consideration is welfare of the children so
demands then technical objections cannot
come in the way. However, while deciding
the welfare of minor child it is not the view
of one spouse alone which has to be taken
into consideration. The courts should
decide the issue of custody only on the
basis of what is in the best interest of the
children. A child, especially a child of
tender years requires the love, affection,
company, protection of both parents. This is
not only the requirement of the child but is
his/her basic human right. Just because the
parents are at way with each other, does not
mean that the child should be denied the
care, affection, love or protection of any
one of the two parents.

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
98 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

24. Thus, this Court is not going into
various allegations and counter allegations
made by both the spouses on each other. I
am clearly of the view that it is in the best
interest of the child to have parental care of
both the parents, if not joint then at least
separate. I have no doubt that the child
needs both parents and he would be equally
happy, if not happier, in the company of the
mother as well, the child would perhaps be
happier if he could have both their parents.
Unfortunately, the parents are unable to
resolve their differences and stay together.
Be that as it may, the child has a right to
access both parents, and get the love and
affection of both parents. Whatever the
differences arose between the spouses, the child
cannot be denied company of both.

25. In view of the observations/discussions
made and judgments referred above, this Court is
of the view that the child Master Malav Dwivedi
shall remain in custody with her father in the
interest of Justice as the welfare love affection
company protection is in the custody of the father/
respondent no. 4. Further, this court issues
following directions:

(i) The custody of child; Master Malav
Dwivedi shall remain with father respondent
No.4-Shwetang Dwivedi.

(ii) Since the mother-Smt. Sudha
Dwivedi lives in Lucknow, she is permitted to
meet the child on every third Sunday of each
Month starting from February, 2024 between
10:30 A.M. to 2:30 P.M. at the current residence of
respondent no. 4 i.e E-3/268, 69 Vinay Khand-3,
Gomti Nagar, Lucknow with the condition of
giving one day prior information to the respondent
No.4-Shwetang Dwivedi (father) regarding
meeting at his residence in Lucknow. It is further
provided that the petitioner is allowed to have
conversation with her child Master Malav
Dwivedi son by mobile phone, whats app call or
video call whenever she wants between 7.00 p.m
to 7.30 p.m. as per Indian Standard Time.

(iii) If the mother of child wants to give
any gifts on account of love and affection or do
anything for well being of child then father/
respondent no. 4 or any of his family members
will not make any objection. However, mother
shall keep in mind that such thing will be given,
which are for use and safe for the child health.

(iv) The petitioner Smt. Sudha
Dwivedi is at liberty to approach the appropriate
forum for claiming the custody of the child under
the Hindu Minority and Guards Act 1956 or under
the Guardians and Wards Act, 1890 as the case
may be in accordance with law.

26. With the above observations/directions,
this habeas corpus petition is finally
disposed of.
----------

(2024) 2 ILRA 98
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2024

BEFORE

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

Habeas Corpus Writ Petition No. 622 of 2023

Niyaz Ansari ...Petitioner
Versus
Adhikshak Janpad Karagar, Chitrakoot &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Abhishek
Kumar Mishra, Sri Dayashankar Mishra (Sr.
Advocate)