# Master Abeer Tyagi v. Mr. Varun Tyagi & Ors

- **Citation:** (2021) 11 ILRA 804
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** Habeas Corpus Writ Petition No. 285 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-abeer-tyagi-v-mr-varun-tyagi-ors-46607
- **Pages:** 7

## Headnote

Constitution of India, Art. 226 - Habeas Corpus
writ petition - Guardian and Wards Act, 1890 -
Petitioner mother seeking direction to the
father to produce corpus of her minor child -
Relying upon Manuj Sharma Vs. State of U.P.
and others [2019 (4) ADJ 840] held habeas
corpus
writ
petition
not
maintainable
-
However granted liberty to the petitioner to
avail
the
remedy
before
the civil court
concerned

Dismissed. (E-5)

List of Cases cited:

## Text

804 INDIAN LAW REPORTS ALLAHABAD SERIES

56. The other judgment in the case of
Kumari Palak (Minor) and another Vs. Raj
Kumar Vishwakarma and others3 upon which
reliance has been placed on behalf of the
petitioners, is distinguishable on facts, inasmuch
as it was a case where the father of the minor
girl of age about three and half years, who had
sought to claim her custody, had been acquitted
in the criminal trial, and the Court upon taking
into consideration the aforesaid facts and that the
mother was no longer alive and that the father
was ready to provide his daughter all love, care
and affection, granted custody of the minor
daughter to the father.

57. The present habeas corpus petition
principally seeks to raise claims with regard to
guardianship and custody of the petitioner no. 1
(corpus) who is girl child stated to have been
born on 04.06.2018 and presently aged about
three years. It is not disputed that the mother of
the petitioner no. 1, upon being seriously ill was
taken away by the respondent no. 4 along with
the minor child for medical treatment and she
died on 31.07.2019 and since then the petitioner
no. 1 is under the care and custody of the
respondent no. 4, her maternal grand-father. The
lodging of the FIR under Sections 498-A, 304-B
IPC and Section 3/4 Dowry Prohibition Act,
1961, in which the petitioner nos. 2, 3 and 4, are
named as accused and the pendency of the
criminal proceedings are reflected from the
records.

58. The aforementioned facts do not
indicate that the custody of the minor with the
respondent no. 4 can in any manner be said to
amount to an illegal and improper detention. The
child from her infancy, when she was of a tender
age, appears to be living with her maternal
grand-father. This together with the fact that the
father who is claiming custody is named as an
accused in a criminal case relating to the death
of the mother of the corpus, would also be a
relevant factor. The other considerations which
would have a material bearing would be the
necessity of the child being provided loving and
understanding care, guidance and a warm and
compassionate relationship in a pleasant home,
which are essential for the development to the
child's character and personality.

59. It would be relevant to bear in mind
that in deciding questions relating to custody of
a minor child, as in the present case, the
paramount consideration would be welfare of
the minor and not the competing rights with
regard to guardianship agitated by the parties for
which the proper remedy would be before the
appropriate statutory forum.

60. This Court, in the facts of the case, is
not inclined to exercise its extraordinary
jurisdiction under Article 226 of the Constitution
of India, to entertain the petition for a writ of
habeas corpus.

61.

The
petition
stands
dismissed
accordingly.
----------

(2021)11ILR A804
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Habeas Corpus Writ Petition No. 285 of 2021

Master Abeer Tyagi ...Petitioner
Versus
Mr. Varun Tyagi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabhav Srivastava, Sri Anurag Bhatt

Counsel for the Respondents:
A.G.A., Sri Sumit Daga, Sri A.C. Srivastava, Sri
R.P. Singh Chandel
11 All. Master Abeer Tyagi Vs. Mr. Varun Tyagi & Ors.
805
Constitution of India, Art. 226 - Habeas Corpus
writ petition - Guardian and Wards Act, 1890 -
Petitioner mother seeking direction to the
father to produce corpus of her minor child -
Relying upon Manuj Sharma Vs. State of U.P.
and others [2019 (4) ADJ 840] held habeas
corpus
writ
petition
not
maintainable
-
However granted liberty to the petitioner to
avail
the
remedy
before
the civil court
concerned

Dismissed. (E-5)

List of Cases cited:

1. Manuj Sharma Vs St. of U.P. & ors. [2019 (4) ADJ
840]

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the petitioner,
Sri Pankaj Srivastava, Sri C.B. Singh, Sri
Madnesh Prakash, learned A.G.A. for the State
and Sri Sumit Daga, learned counsel for the
opposite parties no. 1, 2 and 3 and perused the
record.

2. This petition has been filed with a prayer
to issue a writ in the nature of habeas corpus
directing and commanding the respondents to
produce the corpus (petitioner No. 1) from
unlawful, astonishingly harmful an illegal
custody of Respondent No. 1, 2 and 3 and set
him liberty with his mother.

3. From the perusal of the Paragraph No.
24 of the Habeas Corpus writ petition it
transpires that the matter is already pending
before the appropriate Court for redressal of
ward custody, which is quoted below:

"That thereafter, the mother/legal
guardian of the petitioner also filed an
application on 26/8/2020, under section 6 of the
Hindu Minority and Guardianship Act, 1956
read with Section 7 and 25 of the Guardians and
Wards Act, 1890 seeking custody of the
Petitioner before Family Court, Ghaziabad. The
mother/legal guardian has also been threatened
for life by Respondent No. 1,2 and 3 and as
mentioned above on 25.4.2020, has also been
forcefully thrown out from her matrimonial
home."

4. On the other hand learned A.G.A. has
placed the reliance upon the case of Manuj
Sharma Vs. State of U.P. and others [2019 (4)
ADJ 840] by Hon. Pritinker Diwaker and Raj
Beer Singh, JJ decided on 12.4.2019 at para
Nos. 8 to 28, which is quoted below:

"8. Habeas corpus "ad subjiciendum"
means "that you have the body to submit or answer"
which is called as Festinum Remedium - A speedy
remedy, which has been sought by the petitioner in
this instant case.

9. Habeas Corpus is Latin for "you have
the body". The writ is referred to in full in legal texts
as habeas corpus ad subjiciendum or more rarely ad
subjiciendum et recipiendum. It is sometimes
described as the "great writ". It is considered as a
most expeditious remedy available under the law.

10. The meaning of the term habeas
corpus is "you must have the body". Halsbury in his
Laws of England, 4th Edition, observed as follows: -

"The
writ
of
habeas
corpus
ad
subjiciendum which is commonly known as the
writ of habeas corpus is a prerogative process for
securing the liberty of the subject by affording an
effective means of immediate release from the
unlawful or unjustifiable detention whether in
prison or in private custody. It is a prerogative
writ by which the queen has a right to inquire into
the laws for which any of her subjects are deprived
of their liberty."

11. In Corpus Juris Secundum, the
nature of the writ of habeas corpus is
summarized thus:
806 INDIAN LAW REPORTS ALLAHABAD SERIES

"The writ of habeas corpus is a writ
directed to the person detaining another,
commanding him to produce the body of the
prisoner at a designate time and place with the
day and cause of his caption and detention to
do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that
behalf. 'Habeas corpus' literally means "have
the body". By this writ, the court can direct to
have the body of the person detained to be
brought before it in order to ascertain whether
the detention is legal or illegal. Such is the
predominant position of the writ in the AngloSaxon Jurisprudence."

12.
In
the
Constitutional
and
Administrative Law by Hood Phillips and
Jackson it was stated as under: - (Relied upon
by the Supreme Court in the matter of
Surinderjit Singh Mand and another v. State of
Punjab
and
another3,
to
highlight
the
importance and significance of personal liberty,
specially with reference to unlawful detention.)
"10. The legality of any form of detention may
be challenged at common law by an application
for the writ of habeas corpus. Habeas corpus
was a prerogative writ, that is, one issued by the
King against his officers to compel them to
exercise their functions properly. The practical
importance of habeas corpus as providing a
speedy judicial remedy for the determination of
an applicant's claim for freedom has been
asserted frequently by judies (sic) and writers.
Nonetheless, the effectiveness of the remedy
depends in many instances on the width of the
statutory power under which a public authority
may be acting and the willingness of the courts
to examine the legality of decision made in
reliance on wide-ranging statutory provision. It
has been suggested that the need for the "blunt
remedy' of habeas corpus has diminished as
judicial review has developed into an ever more
flexible jurisdiction. Procedural reform of the
writ may be appropriate, but it is important not
to lose sight of substantive differences between
habeas corpus and remedies under judicial
review. The latter are discretionary and the
court may refuse relief on practical grounds;
habeas corpus is a writ of right, granted ex
debito justitiae."

13. Lord Halsbury LC in Cox v.
Hates4 held that "the right to an instant
determination as to lawfulness of an existing
imprisonment" is the substantial right made
available by this writ.

14. Likewise in Barnardo v. Ford5 the
writ of habeas corpus has been described as a
writ of right which is to be granted ex debito
justitiae. Though a writ of right, it is not a writ
of course. The applicant must show a prima
facie case of his unlawful detention. Once,
however, he shows such a case and the return is
not good and sufficient he is entitled to this writ
as a matter of right.

15. In R. v. Secy. of State for Home
Affairs6, it has been held that a person is not
entitled to be released on a petition of habeas
corpus if there is no illegal restraint. "The
question for a habeas corpus court is whether
the subject is lawfully detained. If he is, the writ
cannot issue, if he is not, it must issue."

16. Likewise in Cox v. Hakes7 it has
been held that the writ of habeas corpus is an
effective means of immediate release from
unlawful detention, whether in prison or private
custody. Physical confinement is not necessary
to constitute detention. Control and custody are
sufficient.

17. A Constitution Bench judgment of
the Supreme Court in the matter of Kanu Sanyal
v. District Magistrate, Darjeeling and others8
traced the history, nature and scope of the writ
of habeas corpus. It has been held by Their
Lordships that it is a writ of immemorial
antiquity whose first threads are woven deeply
11 All. Master Abeer Tyagi Vs. Mr. Varun Tyagi & Ors.
807
"within the seamless web of history and
untraceable among countless incidents that
constituted a total historical pattern of AngloSaxon jurisprudence". Their Lordships further
held that the primary object of this writ is the
immediate determination of the right of the
applicant's freedom and that was its substance
and its end. Their Lordships further explaining
the nature and scope of a writ of habeas corpus
held as under: -

"The writ of habeas corpus 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
detained is directed in order that the
circumstances of his detention may be inquired
into, or to put it differently, "in the order that
appropriate judgment be rendered on judicial
enquiry into the alleged unlawful restrain". But
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. The essential and
leading theory of the whole procedure is the
immediate determination of the right to the
applicant's 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. The production of the body
of the person alleged to be wrongfully detained
is ancillary to this main purpose of the writ. It
is merely a means for achieving the end which
is to secure the liberty of the subject illegally
detained."

18. In the matter of Union of India v.
Yamnam Anand M. alias Bocha alias Kora alias
Suraj and another9,while explaining the nature
of writ of habeas corpus, Their Lordships of the
Supreme Court held that though it is a writ of
right, it is not a writ of course and the applicant
must show a prima facie case of his unlawful
detention. Paragraph 7 of the report states as
under: -

"7. Article 21 of the Constitution
having declared that no person shall be deprived
of life and liberty except in accordance with the
procedure established by law, a machinery was
definitely needed to examine the question of
illegal detention with utmost promptitude. The
writ of habeas corpus is a device of this nature.
Blackstone called it "the great and efficacious
writ in all manner of illegal confinement". The
writ has been described as a writ of right which
is grantable ex debito justitiae. Though a writ of
right, it is not a writ of course. The applicant
must show a prima facie case of his unlawful
detention. Once, however, he shows such a
cause and the return is not good and sufficient,
he is entitled to this writ as of right."

19. A writ of habeas corpus is not to
be issued as a matter of course. Clear grounds
must be made out for issuance of such writ. (See
Dushyant Somal v. Sushma Somal10)

20. In the matter of Usharani v. The
Commissioner
of
Police,
Bangalore
and
others11, the writ of habeas corpus has been
defined very lucidly as under: -

"The claim (for habeas corpus) has
been expressed and pressed in terms of concrete
legal standards and procedures. Most notably,
the right of personal liberty is connected in both
the legal and popular sense with procedures
upon the Writ of habeas corpus. The writ is
simply a judicial command directed to a specific
jailer directing him or her to produce the named
808 INDIAN LAW REPORTS ALLAHABAD SERIES
prisoner together with the legal cause of
detention in order that the legal warrant of
detention might be examined. The said detention
may be legal or illegal. The right which is
sought to be enforced by such a writ is a
fundamental right of a citizen conferred under
Article 21 of the Constitution of India.

11. The ancient prerogative writ of
habeas corpus takes its name from the two
mandatory words "habeas" and "corpus".
"Habeas Corpus" literally means "have his
body". The general purpose of these writs as
their name indicates was to obtain the
production of the individual before a Court or a
Judge. This is a prerogative process for securing
the liberty of the subject by affording an
effective relief of immediate release from
unlawful or unjustifiable detention, whether in
prison or in private custody. This is a writ of
such a sovereign and transcendent authority that
no privilege of power or place can stand against
it. It is a very powerful safeguard of the subject
against arbitrary acts not only of private
individuals but also of the executive, the greatest
safeguard for personal liberty, according to all
constitutional jurists. The writ is a prerogative
one obtainable by its own procedure. ... In our
country, it is this prerogative writ which has
been given a constitutional status under Articles
32 and 226 of the Constitution. Therefore, it is
an extraordinary remedy available to a citizen of
this country, which he can enforce under Article
226 or under Article 32 of the Constitution of
India."

21. Thus, the writ of habeas corpus is
a process by which a person who is confined
without legal justification may secure a release
from his confinement. The writ is, in form, an
order issued by the High Court calling upon the
person by whom a person is alleged to be kept in
confinement to bring such person before the
court and to let the court know on what ground
the person is confined. If there is no legal
justification for the detention, the person is
ordered to be released. However, the production
of the body of the person alleged to be
unlawfully detained is not essential before an
application for a writ of habeas corpus can be
finally heard and disposed of by the court. {See:
Kanu Sanyal (supra).}

22. In Nithya Anand Raghavan v. State
of NCT of Delhi and others12, it has been
observed by the Apex Court:

"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 & Ors., (2001) 5 SCC
247, 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.

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 Saleemmuddin
v. Dr. Rukhsana and Ors., (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
11 All. Master Abeer Tyagi Vs. Mr. Varun Tyagi & Ors.
809
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 the
case of Mrs. Elizabeth (supra), 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 (see Paul Mohinder
Gahun Vs. State of NCT of Delhi & Ors., (2004)
113 Delhi Law Time 823, relied upon by the
appellant). It is not necessary to multiply the
authorities on this proposition.

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."

23. Further, in Syed Saleemuddin v.
Dr. Rukhsana and Ors.13, it has been observed
by the Supreme Court:

"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 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."

24. Having considered the aforesaid
judgments of the Supreme Court and the
principles laid down in the aforestated cases for
grant of writ of habeas corpus, it appears that
the condition precedent for instituting a petition
seeking writ of habeas corpus is the person for
whose release, the writ of habeas corpus is
sought, must be in detention and he must be
under detention by the authorities or by any
private individual. It is his detention which gives
the cause of action for maintaining the writ of
habeas corpus. If the allegations in the writ of
habeas corpus read as a whole do not disclose
the detention, in other words, if there is no
810 INDIAN LAW REPORTS ALLAHABAD SERIES
allegation of illegal detention, the writ petition
seeking writ of habeas corpus is liable to be
rejected summarily. Such writ is available
against any person who is suspected of
detaining another unlawfully and the habeas
corpus Court must issue it, if it is shown that the
person on whose behalf it is asked for is
unlawfully deprived of his liberty. The writ can
be addressed to any person whatever - an
official or a private individual - who has another
in his custody.

25. In view of the principles of law laid
down by various Courts, if facts of the present case
are seen, it is apparent that the petitioner has
failed to demonstrate that his two minor children
are illegally detained by his wife (respondent
no.7). The limited contention of the petitioner is
about the welfare of his children, which according
to his own assessment, can be better if children
would be with him. We are afraid, this selfappreciated statement of the petitioner will not
give him any benefit in the present case. The mere
fact that the financial condition of the petitioner is
superior than that of respondent no.7, does not
give him any right for issuance of writ of habeas
corpus. If financial position is the only criteria,
then in every case, a person who is financially
strong would claim custody of child. If a mother is
struggling for her rights along with her children,
even assuming that she is financially weak, she
cannot be deprived of her children just because
her husband is a moneyed man. The judgments
relied upon by counsel for the petitioner are of no
help to him. Even otherwise, in the case in hand,
age of the second child of the petitioner and
respondent no.7 is just about 2 1/2 years and, we
do not wish to separate the small baby from her
mother as well as her sister.

26. From the pleadings of the parties
and after hearing the arguments, it appears that
various allegations are levelled by the parties
against each other. It further appears that the
parties have not made any effort for amicable
settlement and are approaching the Court by filing
one case after another. We hope that some efforts
would be made by the parties for amicable
settlement and, according to us, that would be
actual welfare of the children.

27. In view of the aforesaid, in our
considered opinion, the petition has no substance,
as no ground whatsoever has been made for
issuance of writ of habeas corpus. Accordingly, we
decline to exercise the jurisdiction for issuance of
writ of habeas corpus.

28. The writ petition is, accordingly,
dismissed. However, dismissal of writ petition
shall not preclude the petitioner from seeking
remedy available to him in law. Any observation
made by this Court, while deciding this writ
petition, shall not come in the way of either party."

5. Considering the submissions made by
learned counsel for the petitioners, learned A.G.A.
and from the perusal of the case law cited by
learned A.G.A. it transpires that this habeas corpus
writ petition under Article 226 of Constitution of
India is not maintainable. However, the petitioner
is free to avail the remedy before the civil court
concerned.

6. Accordingly, this petition is hereby
dismissed.
----------

(2021)11ILR A810
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 576 of 2021

Smt. Deepmala Giri & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents