# Master Advait Sharma v. The State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-20
- **Case number:** Habeas Corpus Writ Petition No. 450 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-advait-sharma-v-the-state-of-u-p-ors-46847
- **Pages:** 19

## Headnote

A. Constitution of India, 1950-Article 226application-allowed-petitioner and his wife
admittedly are living separately and their
minor son is in the custody of his father and
grandparents-the rule nisi is made absolutein the case of detention of child the only
person competent to move the court for a
writ of habeas corpus would be one who is
entitled to the custody of the child-the child
is about three and a half years-the applicant
becomes entitled to the custody of child as
of right because the applicant establishes a
prima facie case that the detention is
unlawful-however father would be entitled
for visitation right.(Para 1 to 56)

B. The HMG Act postulates that the custody
of an infant or a tender aged child should be
given to his/her mother unless the father
discloses cogent reasons that are indicative
of and presage the likelihood of the welfare
and interest of the child being undermined
or jeopardised if the custody is retained by
the mother. Section 6(a) of the HMG Act,
therefore, preserves the right of the father
to be guardian of the property of the minor
child but not the guardian of his person
whilst the child is less than five years
old.(Para 51)

The petition is allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,956 of 65,863. This is a partial read: ask again with offset=39956 for what follows._

2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
53
bail likely to be allowed to the petitioner,
we are of the view that there is no
substance in the contention. No doubt,
when
the
proceedings
of
clamping
provisions of NSA were initiated, the
petitioner was in jail but it is settled by a
catena of decisions of the Apex Court that
even when a person is in custody, a
detention order can validly be passed if the
authority passing the order is aware of the
fact of his being in custody and he has
reason to believe, on the basis of material
placed before him, that there is imminent
possibility of his being released on bail and
that on being so released, he would in all
probability indulge in prejudicial activities
and to prevent him from doing so, it is
necessary to detain him. A detention order
cannot be struck down on the ground that
the proper course for the authority was to
oppose the bail application and if bail is
granted notwithstanding such opposition, to
question it before a higher Court, as is
sought be pleaded by learned counsel for
the petitioner. In this regard, criteria was
laid down by the Hon'ble Apex Court in the
case of Kamarunnissa and others vs.
Union of India (1991) 1 SCC 128 also
fortified in Champion R. Sangma vs.
State of Meghalaya (2015) 16 SCC 253, it
was held :-

"13. In case of a person in
custody a detention order can validly be
passed (1) if the authority passing the
order is aware of the fact that he is
actually in custody; (2) if he has reason
believe on the basis of reliable material
placed before him (a) that there is a real
possibility of his being released on bail,
and (b) that on being so released he
would in all probability indulge in
prejudicial activity and (3) if it is felt
essential to detain him to prevent him
from so doing."

21. So far as the argument relating to
non supply of grounds of order of detention
and further extension thereof is concerned,
it is noteworthy to mention that the grounds
of detention were communicated to the
petitioner at the time of passing the
impugned
detention
order
dated
20.11.2019. It was further extended by the
State which was communicated to the
petitioner in due time. There was no such
requirement to furnish grounds of extension
to the detenue because the grounds of
detention were the same, so no any
prejudice was likely to be caused to the
petitioner.

22. Having considered the matter in
the light of the facts and circumstances,
noted above, we are of the opinion that the
apprehension entertained by the Detaining
Authority, to the effect that petitioner's
activities are prejudicial to the maintenance
of public order, is genuine and well
founded. Thus, we do not find any illegality
in the impugned orders, warranting our
interference. The writ petition, being bereft
of any merit, is dismissed accordingly.
There will, however, be no order as to
costs.
----------
(2021)02ILR A53
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 450 of 2020

Master Advait Sharma ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vibhu Rai, Mr. Abhinav Gaud
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., Sri Arvind Prabodh Dubey, Dr. Rajeev
Nanda, Sri Manish Kumar Vikki

A. Constitution of India, 1950-Article 226application-allowed-petitioner and his wife
admittedly are living separately and their
minor son is in the custody of his father and
grandparents-the rule nisi is made absolutein the case of detention of child the only
person competent to move the court for a
writ of habeas corpus would be one who is
entitled to the custody of the child-the child
is about three and a half years-the applicant
becomes entitled to the custody of child as
of right because the applicant establishes a
prima facie case that the detention is
unlawful-however father would be entitled
for visitation right.(Para 1 to 56)

B. The HMG Act postulates that the custody
of an infant or a tender aged child should be
given to his/her mother unless the father
discloses cogent reasons that are indicative
of and presage the likelihood of the welfare
and interest of the child being undermined
or jeopardised if the custody is retained by
the mother. Section 6(a) of the HMG Act,
therefore, preserves the right of the father
to be guardian of the property of the minor
child but not the guardian of his person
whilst the child is less than five years
old.(Para 51)

The petition is allowed. (E-5)

List of Cases cited:-

1. Sumedha Nagpal Vs St. of Delhi & ors.,(2000) 9
SCC 745

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

3. Rishik Lavania & anr. Vs St of U.P. & ors.,(2020)
SCC Online All 1035.

4. Reetu & anr. Vs St. of U.P & ors., (2020) SCC
Online 1136

5. Aisha (Minor) & anr. Vs St of U.P & ors.
(2020) SCC Online 1129
6. PNB & ors. Vs Atmanand Singh & ors., (2020)
6 SCC 256

7. Yashita Sahu Vs St of Raj. & ors., (2020) 3
SCC 67

8. Githa Hariharan(Ms) & anr. Vs RBI & anr.,
(1999) 2 SCC 228

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

10. Aharya Baranwal & 3 ors. Vs St. of U.P. & 2
ors. HABC No. 3921 of 2018

11. Master Atharva (Minor ) & anr .Vs St. of U.P.
& 7 ors., (2020) 143 ALR 332

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

1. Master Advait Sharma, a child of
three years and a half, occupies the centre
stage of controversy, that is the subject
matter of this Habeas Corpus Writ Petition.
It about the child's custody that his parents
are entangled in a bitter battle. The child's
misfortune, circumstanced as he is, is the
fallout of an estrangement of his parents,
who do not seem to have got along in
matrimony. This has all happened in
circumstances hereinafter detailed.

2. Advait's parents, Preeti Rai and
Prashant
Sharma,
were
married
on
November the 28th, 2013. Preeti Rai is an
I.T.
Engineer,
employed
with
a
Multinational
Corporation.
Prashant
Sharma is a Sales Manager with a business
house. He is currently serving as an Area
Manager with Tropicana Juices, a company
based at Ghaziabad. Advait was born of the
wedlock of Preeti Rai and Prashant Sharma
on 05.07.2017. Smt. Sharda Sharma and
Chandra Kishore Sharma, who figure in the
array of parties to this Habeas Corpus Writ
Petition, are Prashant's mother and father,
and Advait's grandparents. There is trading
2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
55
of allegations by the spouses, that carry
varying versions to suit each about their
case, why they fell apart. But, that does not
matter, so far as the present proceedings are
concerned. This petition has been brought
by Preeti Rai, on behalf of Advait, saying
that her minor son is in the unlawful
custody of his father and grandparents,
wherefrom he ought to be relieved and
delivered to her.

3. Preeti Rai was earlier posted in the
N.C.R., but she says that she was thrown
out
of
her
matrimonial
home
on
20.04.2019, over issues relating to dowry.
She then sought a transfer to Bengaluru,
with the intention to stay close to her son,
because Advait's grandparents would often
take him away to their daughter's place in
Bengaluru. However, within a few days of
Preeti's arrival in Bengaluru, Advait was
relocated to Delhi.

4. The pleadings of parties are replete
with virtues claimed for themselves and
demonizing the other party, including the
in-laws on both sides. That again, ought not
to be looked into or considered by this
Court much, except to the extent that it is
relevant to the issue of the minor's welfare.

5. This petition was admitted to
hearing on 09.09.2020, requiring Advait to
be
produced
before
the
Court
on
16.09.2020, bearing all caution in terms of
the CoViD-19 protocol. On 16.09.2020, the
minor was produced and the parents also
appeared. Bearing in mind the age of the
couple and the minor's welfare, that would
be best secured with his parents' reunited,
this Court referred the parties to the
Allahabad High Court Mediation and
Conciliation
Center
to
attempt
a
reconciliation. On 17.09.2020, an interim
settlement was arrived at between parties,
carrying the terms recorded in this Court's
order of September the 18th, 2020. This
Court had wished best for the minor and his
parents. But, that was not to be. On
22.10.2020, when the matter came up
again, the Court was informed by Dr. Rajiv
Nanda, learned Counsel appearing on
behalf of respondent nos. 4 and 5, that the
interim settlement recorded before the
Mediation and Conciliation Centre had
fallen through. This Court, accordingly,
ordered on 22.10.2020 that Smt. Preeti Rai
and Prashant Sharma shall appear on
05.11.2020 along with Advait. It was at
that stage that hearing commenced on
05.11.2020.
Hearing
concluded
on
08.12.2020 and judgment was reserved.

6. Heard Mr. Vibhu Rai along with
Mr. Abhinav Gaud, learned Counsel for the
petitioner, Dr. Rajiv Nanda along with Mr.
Manish Kumar Vikki, learned Counsel
appearing on behalf of respondent nos. 4 &
5 and Mr. S.S. Tiwari, learned A.G.A.
appearing for the State.

7. Dr. Rajiv Nanda, learned Counsel
for the respondents has raised an objection
about the maintainability of this Habeas
Corpus Writ Petition. He has submitted that
a habeas corpus writ petition is not
maintainable at the instance of one parent
seeking the custody of a child from the
other, because the custody cannot be
termed unlawful. He submits that the father
is the natural guardian under Section 6(a)
of the Hindu Minority and Guardianship
Act, 19561, and unless it be shown that the
minor's welfare is in jeopardy in the father's
hands, the father's custody cannot be
termed illegal or unlawful. Dr. Nanda
submits that in a situation like the one in
hand, the mother's remedy is to institute
proceedings seeking custody, under Section
25 of the Guardians and Wards Act, 18902,
56 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Court of competent jurisdiction.
This objection by the learned Counsel for
the respondents is sought to be sustained on
the following authorities : Sumedha
Nagpal vs. State of Delhi & ors., (2000) 9
SCC 745; Tejaswini Gaud and others vs.
Shekhar Jagdish Prasad Tewari and
others, (2019) 7 SCC 42; Rishik Lavania
and another vs. State of U.P. and others,
2020 SCC OnLine All 1035; Reetu and
another vs. State of U.P. and others, 2020
SCC OnLine 1136; and Aisha (Minor)
and another vs. State of U.P. and othes,
2020 SCC OnLine 1129.

8. Apart from these decisions, Dr.
Nanda has urged the broad principle of
alternative remedy, which, if available, bars
a writ petition. To the above end, he has
placed reliance on a decision of the
Supreme Court in Punjab National Bank
and others vs. Atmanand Singh and
others, (2020) 6 SCC 256, wherein it has
been held thus :

"24. In Hyderabad Commercials
[Hyderabad Commercials v. Indian Bank,
1991 Supp (2) SCC 340], on which reliance
has been placed, it is clear from para 4 of
the said decision that the Bank had
admitted its mistake and liability, but took
a specious plea about the manner in which
the transfer was effected. On that stand, the
Court proceeded to grant relief to the
appellant therein, the account-holder. In the
present
case,
however,
the
officials
concerned of the Bank have denied of
being party to the stated agreement and
have expressly asserted that the said
document is forged and fabricated. It is
neither a case of admitted liability nor to
proceed against the appellant Bank on the
basis of indisputable facts.

25. Even the decision in ABL
International Ltd. [ABL International Ltd.
v. Export Credit Guarantee Corpn. of India
Ltd., (2004) 3 SCC 553] will be of no avail
to Respondent 1. This decision has referred
to all the earlier decisions and in para 28,
the Court observed as follows: (SCC p.
572)

"28. However, while entertaining
an objection as to the maintainability of a
writ petition under Article 226 of the
Constitution of India, the court should bear
in mind the fact that the power to issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provisions of the
Constitution. The High Court having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. The Court has imposed upon
itself certain restrictions in the exercise of
this power. (See Whirlpool Corpn. v.
Registrar of Trade Marks [Whirlpool
Corpn. v. Registrar of Trade Marks, (1998)
8 SCC 1].) And this plenary right of the
High Court to issue a prerogative writ will
not normally be exercised by the Court to
the exclusion of other available remedies
unless such action of the State or its
instrumentality
is
arbitrary
and
unreasonable
so
as
to
violate
the
constitutional mandate of Article 14 or for
other valid and legitimate reasons, for
which the Court thinks it necessary to
exercise the said jurisdiction."

 (emphasis supplied)

9. Dr. Nanda submits that the
authority of their Lordships of the Supreme
Court in Atmanand Singh (supra) would
squarely be attracted to the facts here,
because
this
petition
also
involves
extremely complex questions of fact, from
which alone, inference about the minor's
welfare can be drawn. Therefore, the
course indicated in Atmanand Singh
requiring parties to pursue their alternative
2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
57
remedy ought to be the fate of this habeas
corpus writ petition. It must be remarked
here that the principle in Atmanand Singh
is stated on high authority and binds this
Court, but that decision was rendered in the
context of a writ petition, other than habeas
corpus. The principle about alternative
remedy, in the opinion of this Court, would
not be attracted to a writ of habeas corpus.
Habeas corpus is about liberty and in its
application to a custody dispute, though
brought on a cause of action about custody
of the child, it is issued on the parameters
of welfare. Atmanand Singh was a case
relating to a writ, other than habeas corpus.
It arose out of a dispute between a
customer and the Bank about a money
claim. The general principle of alternative
remedy applicable to all other kinds of
writs, would never apply to a writ of habeas
corpus. It is quite another matter that in
some cases, the question about the minor's
welfare, which a Court seized of a habeas
corpus matter may examine, is enmeshed in
so much of factual disputations, that it is
incapable of resolution in proceedings,
decided on affidavits. It is there that parties
may be asked to resort to their remedy
under the statute.

10. In Rishik Lavania (supra), I
had occasion to consider this question
and the remarks there about a habeas
corpus
writ
petition
being
not
maintainable, were in the context of a
capable mother, who held custody with
an ex facie strong indication about the
minor's welfare being secure. Here, there
is much cavil on both sides, where the
minor's welfare would be better secured;
there is also a clear case here to be
examined, whether the father with his
two aged parents can take care of the
minor, who is a young child of three and
a half years.

11. The decision in Reetu (supra) is
clearly distinguishable on facts, because
it was a case not between two parents. In
Reetu, I held a habeas corpus writ
petition to be maintainable, because it
was the case of a mother, who had
petitioned for her minor child's custody
held by the grandmother and the father's
brother. There is nothing in the decision
in Reetu, which may bar the petitioner's
right to maintain a petition for a writ of
habeas corpus.

12. Aisha (supra) was a case where
the remarks in paragraph 11 do not
exclude the remedy of a habeas corpus,
so far as a custody dispute between
parents about their child is concerned. It
only says that where very intricate
questions are involved, the parties may be
left free, in the first instance, to go to the
Civil Court. This is a question, which is
to be seen on the facts of the case, but
cannot be utilized to throw out a petition
for a writ of habeas corpus in a custody
matter between parents at the threshold.
In Aisha, I held:

"11. The objection raised by the
learned counsel for the respondent that this
petition is not maintainable as it relates to a
custody dispute between two parents,
where custody of either cannot be said to
be unlawful, in the sense that it is
understood in the jurisdiction for a writ of
habeas corpus, cannot be accepted. The
validity of a minor's custody with a parent
can be examined in a petition for a writ of
habeas corpus with reference to the law
governing the right to that custody. The
question of welfare of minor too, can be
examined within the scope of these
proceedings. The only limitation appears to
be that the inquiry should not involve fine
and intricate details, the assessment of
58 INDIAN LAW REPORTS ALLAHABAD SERIES
which may require such a detailed inquiry
which is not traditionally associated with
the exercise of the Court's writ jurisdiction.
Where a very detailed inquiry is required to
be made, the parties ought to be left free in
the first instance to go to the Civil Court.

12. Now, in the facts of the present
case it has to be seen whether the custody
of the mother is apparently unlawful, so as
to entitle the father to ask for a writ of
habeas corpus."

13. In this context, reference may be
made to the decision of the Supreme Court
in Tejaswini Gaud (supra), to which Dr.
Nanda has alluded. It has been held in
Tejaswini Gaud, thus :

"19. 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
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."

14. In a later decision, the Supreme
Court considered the question in Yashita
Sahu vs. State of Rajasthan and others,
(2020) 3 SCC 67, where it was held:

"10. It is too late in the day to
urge that a writ of habeas corpus is not
maintainable if the child is in the custody
of another parent. The law in this regard
has developed a lot over a period of time
but now it is a settled position that the
court can invoke its extraordinary writ
jurisdiction for the best interest of the
child. This has been done in Elizabeth
Dinshaw v. Arvand M. Dinshaw [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13] , Nithya
Anand Raghavan v. State (NCT of Delhi)
[Nithya Anand Raghavan v. State (NCT of
Delhi), (2017) 8 SCC 454 : (2017) 4 SCC
(Civ) 104] and Lahari Sakhamuri v.
2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
59
Sobhan Kodali [Lahari Sakhamuri v.
Sobhan Kodali, (2019) 7 SCC 311 : (2019)
3 SCC (Civ) 590] among others. In all
these cases, the writ petitions were
entertained. Therefore, we reject the
contention of the appellant wife that the
writ petition before the High Court of
Rajasthan was not maintainable."

(emphasis by Court)

15. This Court is, therefore, not
minded to accept the submission of Dr.
Nanda that the present habeas corpus writ
petition ought to be thrown out on the
ground of maintainability, because the
minor is in his father's custody, which, per
se, is not unlawful. There is no quarrel
between parties about the legal proposition
that this Court, in considering the claim of
parties to the minor's custody, is bound by
the principle that welfare of the child is of
paramount consideration. Both parties say
that Advait's welfare would be best secured
with the one claiming it. There is a very
different version about adherence to the
norms of a responsible spouse or parent
coming from each side. It is something that
is commonplace and expected.

16. It is asserted on behalf of Preeti
that at the time the parties got married, she
was working with the British Telecom
company at Gurgaon and Prashant was
employed with PepsiCo, Lays Division,
Delhi. It is her case that Prashant resigned
from the PepsiCo and remained jobless
from January 2015 to April, 2015. During
this period of time, Preeti was taking care
of the entire family, comprising Prashant,
her
mother-in-law
and
father-in-law,
catering to all their financial requirements.
Prashant
joined
another
company
in
November, 2015. It is claimed by Preeti
that she was pestered with the demand for a
car in dowry. She says that she bought a car
on loan, the EMIs whereof she is still
repaying. In January, 2017, Prashant left
his
job,
and
the
entire
financial
responsibility to run the household fell
again on Preeti's shoulders.

17. It is Preeti's further case that for
that reason, she could not afford to take
leave and stay home, though she was in the
family way. It is asserted that on 3rd May,
2017, Prashant virtually forced Preeti to
pay a sum of Rs.1 lakh towards his tuition
fee at the Indian Institute of Foreign Trade,
New Delhi. She made good that demand
from her savings in order to salvage her
marriage. In the end of June, 2017,
Prashant joined the Ultratech Cement,
Delhi. On 5th July, 2017, as already said,
Advait was born. He was born in the Fortis
Hospital, Noida, Gautam Budh Nagar. In
the month of September, 2017, Prashant
once again left his job with Ultratech
Cement. He remained unemployed upto
January, 2018. During this period of time,
the entire financial liabilities of the
household were borne by Preeti. It is
asserted by Preeti that Advait was in her
custody and care since his birth. He was in
good health. It is said that Advait was
forcefully taken away to Bengaluru by Smt.
Sharda Sharma and Chandra Kishore
Sharma, her mother-in-law and father-inlaw, respectively. The went to see their
daughter, who was then in the family way.
They stayed there till the end of October,
2018.

18. It is asserted for a fact that
Prashant's sister stays in Bengaluru. It then
said that Advait was brought back to Delhi
by his grandparents in the month of
October and reunited with Preeti for a
couple of days. After a short stay of two
days in Delhi, the grandparents again took
Advait to Gorakhpur without informing
60 INDIAN LAW REPORTS ALLAHABAD SERIES
Preeti. She says that she kept quiet out of
fear. Chandra Kishore fell ill in the month
of November, 2018 due to affliction of the
prostate, whereupon both the grandparents,
along with Advait, came back to Delhi for
treatment.

19. It is said that on 14th June, 2019,
Sharda Sharma abruptly left for Bengaluru,
taking along Advait without informing
Preeti. It is asserted that on 20.04.2019,
Prashant
ousted
Preeti
from
their
matrimonial home. She attempted to pacify
the matter, and, failing in that endeavour,
sought a transfer to Bengaluru in order to
stay near Advait. Her employers approved
the transfer and she moved to Bengaluru. It
is alleged that Preeti went to the house of
her sister-in-law in Bengaluru to meet
Advait. She was allowed to meet her minor
son once a week. On 1st June, 2019, when
Preeti went to her sister-in-law's home, she
was not permitted to enter. She was
informed that Advait had been taken to
Delhi by Sharda Sharma, again without
information. On 27.07.2019, Advait was
brought back to Bengaluru by Sharda.

20. The salient, amongst these facts,
are asserted in paragraph nos. 6, 7, 8 and 13
of the habeas corpus writ petition and
paragraph nos.29(a) and 42 of the rejoinder
affidavit. The fact about Advait being
brought back to Bengaluru on 27.07.2019
is sought to be established by a reference to
Annexure no. CA-6 to the counter affidavit
dated 19.10.2020 at page 135 of the paperbook, which carries a photostat copy of an
airways ticket purchased for Advait by
SpiceJet Flight no. SC8719 from Delhi to
Bengaluru.

21. It is asserted in paragraph no. 15
of the petition that Advait was admitted to
the Fortis Hospital, Noida, Gautam Budh
Nagar, while in the custody of respondent
nos.4, 5 and 6, on 3rd September, 2019.
Preeti,
upon
learning
of
Advait's
hospitalization, travelled to Delhi on
05.09.2019. She stayed there until Advait
was discharged and settled properly at
home.
She
left
for
Bengaluru
on
11.09.2020. It is further said that Advait
was again admitted to the Fortis Hospital,
Noida,
Gautam
Budh
Nagar,
but
information about this fact was a secret
kept from Preeti. She learnt about Advait's
hospitalization late in September, 2019. It
is then said that Preeti learnt in the month
of December, 2019 that Advait is alone
with Smt. Sharda Sharma, as Prashant had
left for Bangkok on a trip. She rushed to
Delhi and brought Advait to her sister's
place in NOIDA. Advait was in good
health and stayed with his mother.
Prashant, upon his return, took away
Advait on 22.12.2019.

22. On 17.03.2020, Preeti returned to
Gorakhpur on account of the closure of her
office at Bengaluru in consequence of the
CoViD-19 outbreak. Shortly thereafter, a
nation-wide lock down followed. It is said
that during this period of time, Preeti
attempted to speak to her child through
video call, but the contact was rare. In the
month of July, 2020, Preeti and her father
called Prashant and expressed their desire
to bring Advait to Gorakhpur. They assured
Prashant that all necessary precaution
would be observed, but Prashant declined
the request.

23. On 1st August, 2020, Preeti came
over to Delhi and beseeched Prashant to let
her take Advait to her sister's place in
NOIDA for two days. On the following
day, Prashant offered to take Preeti to his
house. It is asserted that Preeti agreed,
thinking that it may prove a turning point
2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
61
for the parties. There is an assertion on her
behalf to this effect in paragraph no. 20 of
the writ petition. There are then some
assertions to the effect that on 3rd August,
2020, Preeti went over to Prashant's place,
where she was taunted and not permitted to
go near Advait by Prashant and his parents.
Preeti had to call the Police, who listened to
her ordeal and suggested Prashant and his
parents to let Advait be with his mother for
sometime, until his health was restored. It
is claimed that later on, she was thrown out
of the house and not permitted inside any
more. Preeti was taken by her sister to her
home in NOIDA.

24. It is then asserted that Preeti tried
to contact Prashant and his parents on 6th
August, 2020, but to no avail. On the 9th of
August, 2020, Preeti asserts in paragraph
no.28 of the writ petition that she visited
her
husband
and
in-laws'
place
in
Ghaziabad, where she learnt that they had
left on 07.08.2020. On 10th of August,
2020, she returned to her native place in
Gorakhpur, when she could not locate the
whereabouts of her child (Advait). She
thought that Advait might be at Prashant's
Sahara Estate House in Gorakhpur, but
found the flat there locked too. Instead, on
the 12th of August, 2020, Chandra Kishore
Sharma, Preeti's father-in-law visited her
house
in
Kauriram,
Gorakhpur
and
threatened her. On the following day i.e.
13th of August, 2020, Preeti was compelled
to lodge an FIR against Prashant, Smt.
Sharda Sharma, Chandra Kishore Sharma
and Ankita Sharma, her husband, motherin-law, father-in-law and sister-in-law, in
that order, giving rise to Case Crime no.935
of 2020, under Sections 498A, 323, 504,
506 IPC and Section 3/4 of the Dowry
Prohibition Act, Police Station Shahpur,
District Gorakhpur. These facts are asserted
in paragraph nos.28 and 29 of the writ
petition. A xerox copy of the FIR is on
record as Annexure no.5 to the writ
petition. It was after the aforesaid event
that the present habeas corpus writ petition
was instituted on 3rd September, 2020. The
proceedings before this Court, and the
reference to the Allahabad High Court
Mediation and Conciliation Centre, with no
fruitful result, are matters that have been
referred to in the earlier part of this
judgment.

25. There are assertions in the
rejoinder affidavit about Preeti being
harassed, abused and ill-treated during the
period of time that the parties were
together, by virtue of the interim-settlement
made before the Mediation Centre. There
are also allegations about threats extended
to Preeti, asking her to withdraw her case
with the Police. She also claims to have
been threatened over the decision to move
this Court. These facts have been asserted
largely in the rejoinder affidavit filed on
behalf of Preeti.

26. To emphasize once again, this
Court is not much concerned about the
truth or otherwise of these allegations that
have been largely denied in the counter
affidavit filed on behalf of Prashant. The
counter affidavit alleges largely that Preeti
was a cruel wife and a callous mother. It is
asserted that she was cruel also to
Prashant's mother, father and sister. She
spread a canard about Prashant being a
womanizer, drunkard and a gambler. She
threatened Prashant and his parents with
death, imprisonment in a false case, leaving
their house or committing suicide. It is
made out in the counter affidavit that
Preeti's father Chandra Bhan Rai, sister
Udita Rai and mother Saroj Rai would
quarrel with Prashant, asking him to part
ways with his parents.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

27. There is a specific allegation that
soon after marriage, Preeti got Prashant
assaulted by a friend, one Nishith Kumar
Sahu, after she invited him over on the
pretext of dining together. An FIR dated
23.01.2014
about
the
incident
dated
22.01.2014 has been registered as FIR no.
44/2014, under Sections 323, 341 IPC,
Police Station Mayur Vihar Phase-1, East
Delhi. It is also asserted that Preeti, during
the period of time that she was in the
family way, called over Prashant's mother,
who extended all support to her, but Preeti
attended office regularly, despite a clear
advice from doctors to avoid travel, unless
extremely necessary.

28. It is made out that on account of
exertions indulged in by Preeti, contrary to
medical advice, the foetus suffered some
kind of deterioration and the still born child
was found to be in grave danger during a
medical check-up done on 5th July, 2020.
Preeti was admitted to the Fortis Hospital,
NOIDA on that day and she delivered
Advait as a premature baby through a
caesarean. There are assertions that Advait
has a seriously compromised health. He
suffers from the Respiratory Distress
Syndrome. There are much allegations
made out on behalf of Prashant that Preeti
would not feed Advait and weaned him
away from herself within six months. It is
asserted that Prashant had to call his mother
over, because Preeti was not looking after
the child.

29. There is also an allegation that
Preeti would go to office at 11.30 a.m. and
come back at 11.30 in the night. She would
ignore Advait and lock herself inside the
room. Advait would sleep with his
grandmother, Sharda Sharma and Prashant.
It is also asserted that Preeti frequently
stayed away from home over night.
Sometimes, she would go for "office
outings" as these have been described,
leaving back Advait with Prashant and Smt.
Sharda Sharma. It is also asserted that on
18.09.2018, Preeti came back home drunk.
When she was confronted about her
intoxicated state with Advait around, she
lost her temper and abused Prashant and his
mother, cursing them and Advait.

30. It is asserted that on 10.10.2018,
Preeti misbehaved with her mother-in-law
and asked her to leave the house along with
Advait. It is asserted that since Preeti
declined to take care of Advait and
humiliated Prashant's parents, they left
Preshant's
house
on
10.10.2018
for
Gorakhpur along with Advait. It is then
said that in November, 2018 on the
occasion of Chhath Puja, the couple went
to Gorakhpur. There, Preeti's father, mother
and sister came over to Prashant's home
and abused Prashant's parents, causing
them immense shock. It is claimed that this
led to health complications for Chandra
Kishore Sharma, who was hospitalized in
the Northern Railway Central Hospiral,
Paharganj, New Delhi and the Max
Hospital, Saket, Delhi for approximately 48
days. It is made out on an emotional note
that Prashant took care of his father day
and night, performing the pious obligations
of a son to take care of his ailing father. It
is also asserted that Smt. Sharda Sharma
took care of Advait at home, while Preeti
did not take leave from the office, to share
the travails of the family.

31. About Smt. Sharda Sharma's
Bengaluru visit in June, 2019, it is asserted
that, that was to take take care of Prashant's
sister (Sharda Sharma's daughter), Ankita
Sharma, who was then expecting a child.
Advait was taken along to Bengaluru,
because Preeti was not interested to take
2 All. Master Advait Sharma Vs. The State of U.P. & Ors.
63
care of Advait. It is then said that sometime
in the month of February/ March, 2019,
Preeti resigned her job with the British
Telecom company and joined another
concern at Bengaluru. She did not discuss
this change with anyone in the family. She
told Prashant around 15th April, 2019 that
she would be leaving in 2 - 3 days' time. It
is claimed that in Bengaluru, Preeti would
come over on the weekends to her sister-inlaw's place, but did not show any interest in
taking Advait along with her. It is also
asserted that Preeti did not reveal her
whereabouts in Bengaluru to Prashant or
her in-laws.

32. It is also asserted that on June the
25th, 2019, Preeti went to Gorakhpur
straight from Bengaluru, but did not bother
to come over to Ghaziabad and meet her
son, who was there with Prashant and Smt.
Sharda. About Advait's hospitalization, it is
said that in September, 2019, he fell ill and
was admitted in the Paediatric Intensive
Care Unit of the Fortis Hospital, Sector 62,
NOIDA, from September the 3rd to
September the 7th, 2019. Preeti was
informed about it. She came over to
NOIDA for 3 - 4 days and then went back
to Bengaluru to keep her employer's
commitments. Advait was looked after by
Prashant and Sharda Sharma. Advait again
fell
ill,
requiring
admission
to
the
Paediatric Intensive Care Unit at the Fortis
Hospital on 16th September, 2019. He was
discharged around 19th September, 2019. It
is said that despite information about
Advait's re-hospitalization, Preeti did not
bother to come and visit her son. Instead,
she fought Prashant, blaming him about
Advait's illness.

33. In the month of December, 2019,
Preeti took Advait to her cousin Pratibha
Rai's house around December the 18th,
2019 for a period of about three days. She
did not take proper care of Advait, because
of which he fell ill again. Advait had to be
regularly attended to by Dr. Ankit Parakh
for almost two months. Advait was
administered steroids inhalers and oral
steroids. Details of these medicines have
been set out in the counter affidavit.

34. In the month of February, 2020, it
is claimed by Prashant that Preeti went
from Bengaluru to her father's house at
Kauriram near Gorakhpur, but did not
bother to meet her son, who was in Delhi -
N.C.R. In the month of May, 2020, Preeti
and her father, Chandrabhan Rai are
claimed to have pressurized Prashant to
send Advait to Kauriram, Gorakhpur.
Prashant asserts that he very politely told
them
that
the
prevailing
CoViD-19
Pandemic did not make it safe for Advait to
travel outside Delhi - N.C.R. There are then
assertions in the counter affidavit about the
availability of doctors and hospitals, where
Advait was required to be attended to
during this period of time.

35. The next event that Prashant
claims to have happened was on June the
27th, 2020. It is said that in order to harass
Prashant and his parents, Preeti and her
father conspired and came with a plan to
remove Advait from NOIDA and send him
away. It is not mentioned in this part of the
affidavit, where Advait would be sent;
elsewhere it has been mentioned. It has
been stated that during this period of time,
Advait was not well and was under the
management of various doctors from Delhi,
NOIDA,
Jaipur
and
Mathura,
and,
therefore, he could not be sent to
Gorakhpur. It is asserted that in furtherance
of the conspiracy between Preeti and her
father, she called Prashant on 31st July,
2020 and told him that she is in NOIDA at
64 INDIAN LAW REPORTS ALLAHABAD SERIES
her sister's place, to wit, M-804, Grand
Ajnara Heritage, Clock Tower, Sector 74,
NOIDA, for 10 days. She asked Prashant to
bring over Advait to her sister's place for a
period of 5 - 7 days. Prashant sent Advait
to Preeti in order to avoid "escalation of
conflict", to borrow the precise expression
employed by Prashant in his counter
affidavit. After Advait had been at his
aunt's place for sometime and Prashant was
about to leave, Advait got upset and
agitated. He is said to have inconsolably
wept being in unfamiliar company. Preeti,
thereupon, said that she would come over
to the parties' matrimonial home and spend
3 - 4 days with Advait there. It is asserted
that once back at the parties' matrimonial
home, Preeti got furious on seeing
Prashant's parents there. She is said to have
been annoyed about the issue why Advait
was not acting familiar and playing with
her.

36. On 5th August, 2020 after
Prashant left for his office, Preeti is
claimed to have been instigated by her
father and younger sister. Preeti, on
instigation by her father and younger sister,
is claimed to have abused, fought and
threatened
Prashant's
parents.
She
threatened with getting them jailed in false
dowry and cruelty cases. It is also asserted
that Preeti beat up Advait, when he went
over to his grandmother's lap. According to
Prashant, this disturbed the grandparents
and they asked him to report the matter to
the Police at the earliest. At this stage,
Prashant claims to have called Preeti's
father and requested him to make his
daughter see good sense and pacify the
matter in Advait's interest. In response,
Preeti's father also threatened Prashant with
a jail term for him and his entire family. It
is claimed that there is a call recording
about this conversation.

37.