# Master Atharva (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Habeas Corpus Writ Petition (Civil) No. 430 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-atharva-minor-anr-v-state-of-u-p-ors-45381
- **Pages:** 8

## Headnote

Civil Law - Hindu Minority and Guardianship
Act, 1956- Section 6(a) - The proviso to
Section 6 shows that quite apart from the
question
of
natural
guardianship,
the
custody of a minor, who has not completed
the age of five years, is to be ordinarily with
the mother. The word "ordinary" signifies
that as a matter of rule, children up to the
age of five years are to be left with their
mothers, but there could be exceptions as
well. Those exceptions could be where the
mother is demonstrably leading an immoral
life or may have remarried, where in her
new home, the child from her earlier
alliance has no place, or where the mother is
convicted of a heinous offence etc.

The custody of a child less than six years of
age, has to be ordinarily with the mother
excepting those cases where the mother is
leading an immoral life , has remarried or is
convicted of a heinous offence.

Hindu Minority and Guardianship Act -
Section 13 - Even after the child turns
five, it is not that the mother becomes
disentitled. She still would be the best
person to tender a child and groom him
into
an
adult.
In
the
matter
of
appointment
or
a
declaration
of
a
guardian or grant of custody of a minor,
the right of the person seeking custody is
not important. It is the welfare of the
minor that is of paramount importance-
Financial capacity is not the sole index by
which the suitability of a guardian for the
minor's custody is to be judged. If it be
found that the father is financially better
of, that is not a factor that would work
against the mother. This is so because the
father still would have the responsibility
to provide for the minor. If he fails to do
so, the law would take care of it.

The mother is not disentitled even after the
child crosses the age of five or is financially less
better off than the father, as the welfare of the
child is paramount.

Writ Petition allowed. (Para 8. 9, 11, 12)
(E-3)

Case Law/ Judgements relied upon:-

## Text

178 INDIAN LAW REPORTS ALLAHABAD SERIES

"27. The said order is passed by
the State Government only to enquire into
the landholding records with a view to find
out asto whether original land revenue
records have been destroyed and fabricated
to substantiate their unjustifiable claim by
playing fraud upon the Tehsildar and
appellate authorities to obtain the orders
unlawfully in their favour by showing that
there is no surplus land with the Company
and its shareholders as the valid subleases
are made and they are accepted by them in
the proceedings Under Section 21 of the
Act, on the basis of the alleged false
declarations filed by the shareholders and
sub- lessees Under Section 6 of the Act.
The plea urged on behalf of the State
Government and the defacto complainants
owners, at whose instance the orders are
passed by the State Government on the
alleged ground of fraud played by the
declarants upon the Tehsildar and appellate
authorities to get the illegal orders obtained
by them to come out from the clutches of
the land ceiling provisions of the Act by
creating the revenue records, which is the
fraudulent act on their part which unravels
everything and therefore, the question of
limitation under the provisions to exercise
power by the State Government does not
arise at all. For this purpose, the Deputy
Commissioner of Pune Division was
appointed as the Enquiry Officer to hold
such an enquiry to enquire into the matter
and submit his report for consideration of
the Government to take further action in the
matter. The legal contentions urged by Mr.
Naphade, in justification at this stage, we
are satisfied that the allegation of fraud in
relation to getting the land holdings of the
villages referred to supra by the declarants
on the alleged ground of destroying
original revenue records and fabricating
revenue records to show that there are 384
sub-leases of the land involved in the
proceedings to retain the surplus land
illegally as alleged, to the extent of more
than 3000 acres of land and the orders are
obtained unlawfully by the declarants in the
land ceiling limits will be nullity in the eye
of law though such orders have attained
finality, they are tainted with fraud, the
same can be interfered with by the State
Government and its officers to pass
appropriate orders. The landowners are also
aggrieved parties to agitate their rights to
get the orders which are obtained by the
declarants as they are vitiated in law on
account of nullity is the tenable submission
and the same is well founded and therefore,
we accept the submission to justify the
impugned judgment and order of the
Division Bench of the High Court."

24. In the facts and circumstances, the
Court is of the opinion that the order passed
by the Deputy Director of Consolidation
dated 19.5.2015 is absolutely perfect and
valid order and does not call for any
interference by this Court specially under
Article 226 of the Constitution of India.

25. The writ petition being devoid of
merit is hereby dismissed.
----------

(2020)11ILR A178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2020

BEFORE

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

Habeas Corpus Writ Petition (Civil) No. 430 of
2020

Master Atharva (Minor) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
11 All. Master Atharva (Minor) & Anr. Vs. State of U.P. & Ors.
179
Counsel for the Petitioners:
Sri Anil Kumar Singh, Sri Kishan Gautam

Counsel for the Respondents:
A.G.A., Sri Sanjay Vikram Singh

Civil Law - Hindu Minority and Guardianship
Act, 1956- Section 6(a) - The proviso to
Section 6 shows that quite apart from the
question
of
natural
guardianship,
the
custody of a minor, who has not completed
the age of five years, is to be ordinarily with
the mother. The word "ordinary" signifies
that as a matter of rule, children up to the
age of five years are to be left with their
mothers, but there could be exceptions as
well. Those exceptions could be where the
mother is demonstrably leading an immoral
life or may have remarried, where in her
new home, the child from her earlier
alliance has no place, or where the mother is
convicted of a heinous offence etc.

The custody of a child less than six years of
age, has to be ordinarily with the mother
excepting those cases where the mother is
leading an immoral life , has remarried or is
convicted of a heinous offence.

Hindu Minority and Guardianship Act -
Section 13 - Even after the child turns
five, it is not that the mother becomes
disentitled. She still would be the best
person to tender a child and groom him
into
an
adult.
In
the
matter
of
appointment
or
a
declaration
of
a
guardian or grant of custody of a minor,
the right of the person seeking custody is
not important. It is the welfare of the
minor that is of paramount importance-
Financial capacity is not the sole index by
which the suitability of a guardian for the
minor's custody is to be judged. If it be
found that the father is financially better
of, that is not a factor that would work
against the mother. This is so because the
father still would have the responsibility
to provide for the minor. If he fails to do
so, the law would take care of it.

The mother is not disentitled even after the
child crosses the age of five or is financially less
better off than the father, as the welfare of the
child is paramount.

Writ Petition allowed. (Para 8. 9, 11, 12)
(E-3)

Case Law/ Judgements relied upon:-

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

2. Habeas Corpus Writ Petition No. 3921 of
2018, Aharya Baranwal & 3 ors. Vs St.of U.P. &
2 ors.

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

1. This petition for a writ of habeas
corpus has been effectively instituted by
Smt. Shalini Singh, wife of Mukesh Kumar
Singh asking that her minor son Master
Atharva, petitioner no. 1 be ordered to be
produced before the Court by Mukesh
Kumar singh, Brijesh Kumar Singh and
Smt. Madhuri Singh, respondent nos. 6,7
and 8 and ordered to be liberated from the
said respondents' custody by ordering the
minor to be given into the custody of his
mother, the second petitioner.

2. Smt. Shalini Singh, the second
petitioner and Mukesh Kumar Singh, the
6th respondent were married according to
Hindu rites on 03.12.2017. The wife says
that there was an early onset of matrimonial
cruelty in her life, with her husband and inlaws being the ones to blame. She says that
there was demand of additional dowry and
assault by the husband on a number of
occasions. It appears that the marriage rode
a bumpy course. A child, Master Atharv
was born of the wedlock of parties on
05.11.2018. If the wife were to be believed
the newborn did not do much to cement the
cracks that were widening in the parties'
marriage. The wife claims that postpartum,
the husband, Mukesh turned more abusive
180 INDIAN LAW REPORTS ALLAHABAD SERIES
and on occasion even attempted to assault
the infant.

3. This Court does not intend to form
opinions about this description of the
parties' relationship by the wife but to
shorten an account of malady, it must be
said that on 11.08.2020, the husband and
wife parted ways. The wife says, if her
version again is to be believed in, that she
was thrown out of the matrimonial home
along with her infant on 11.08.2020. She
then proceeded to her parents' place at
Varanasi. Whichever way the couple fell
apart, it is safe to infer that the second
petitioner and her husband, the 6th
respondent became an estranged couple on
and after 11.08.2020. It is claimed by the
wife that the 6th respondent came over to
her parents' place in the evening hours of
11.08.2020 expressing his repentance and
remorse, but she is quick to add that it was
neither repentance or remorse; it was a
decoy. The wife and her parents were taken
in by the ruse and she agreed to go along
with the 6th respondent back to her
matrimonial home. By that time, it was
very late in the evening hours. Therefore,
the couple decided to spend the night at the
wife's parents' place. The next day that is
on 12.08.2020, when the wife's father and
brother were away to run some errands, the
husband and the second petitioner's inlaws, who were also staying back at the
wife's parents' place, forcibly took away the
minor, Master Atharv. It is claimed that in
the scuffle, Smt. Shalini Singh and her
minor son Master Atharv got severely
injured. In spite of the injuries sustained by
the child, the husband and other members
of his family, who were involved in the
mischief along with him, whisked away the
child. The second petitioner, on her father
and brother's return home, narrated the
incident.
Her
father
and
brother
immediately did their best to contact
Mukesh Kumar Singh. Initially, Mukesh
Kumar Singh did not receive the call, but
lateron turned off his phone. The wife
appears to have reported the matter through
a written complaint addressed to the Station
House Officer on 13.08.2020 as well as to
the S.S.P., Varanasi and the Chairman
Women's Commission, U.P., Lucknow on
17.08.2020 and 18.08.2020, respectively.
None of these complaints were of any
avail. The wife's father and brother
proceeded to her matrimonial home but
found the same locked with no one present.
None of the second petitioner's in-laws or
her husband would answer their phone
calls.

4. It is pleaded in the writ petition that
the
wife
did
not
know
about
the
whereabouts of her minor son, the first
petitioner, Master Atharv. The minor needs
her badly as he is aged about one and a half
years.
The
parameters
of
welfare
determined in such matters place the
minor's mother, that is to say, Smt. Shalini
Singh, way above the minor's father and
Shalini Singh's husband, Mukesh Kumar
Singh.

5. The minor, who is an infant, needs
his mother most and it is with her that the
minor's welfare will be best secured. The
complete deprivation of the mother of
contact with her minor son, Master Atharv
has been assailed as an unlawful custody by
his father Mukesh Kumar Singh, the
father's brother Brijesh Kumar Singh and
Smt. Madhuri Singh, Shalini Singh's
mother-in-law and Mukesh Kumar Singh's
mother.

6. It was in the background of the
above facts that this writ petition asking for
a writ order or direction in the nature of
11 All. Master Atharva (Minor) & Anr. Vs. State of U.P. & Ors.
181
habeas
corpus
was
instituted
on
31.08.2020. This court issued a rule nisi on
31.08.2020 ordering the minor to be
produced on 17.09.2020. On 17.09.2020
service of the rule was awaited and the
matter was ordered to be put up on
18.09.2020. On 18.09.2020, the S.P.
Bhadohi was ordered to cause the detenue,
Master Atharva to be produced before this
Court on 22.09.2020 at 2:00 p.m. It was a
bit surprising that the police were unable to
trace the minor and they prayed two weeks
time to comply with the rule nisi. Time was
granted on 22.09.2020, until 06.10.2020. It
was on 06.10.2020 that the minor along
with his father was produced by the police
before the Court. The Court felt that the
second petitioner and the 6th respondent,
who are an estranged couple and still
young, ought to be given an opportunity to
reconcile their differences amicably. A
mediated settlement of the dispute was
thought
fit
by
the
Court,
in
the
circumstances. Accordingly, parties were
referred to the Allahabad High Court
Mediation and Conciliation Centre vide
order dated 06.10.2020, asking the Centre
to report back on the following day. The
report of the Mediation Centre dated
07.10.2020
shows
that
the
Center
adjourned the mediation to 17.10.2020. The
report of the Centre dated 17.10.2020,
shows that in terms of the interim
settlement agreement of that date, the
parties agreed to stay together in a tenanted
premises at Bhadohi and endeavour to
work out their relationship. The next date
fixed before the Centre was 09.11.2020.
However, this Court vide order dated
07.10.2020, while asking the parties to
appear before the Mediation Centre on
17.10.2020, as desired by the Centre, asked
the parties to appear before the Court on
19.10.2020. In the meanwhile, while the
parties entered into an interim settlement
before the Mediation Centre, on 19.10.2020
before the Court, they did a volte-face and
refused to act on the interim settlement.
Thus, this Court had to discontinue the
process of mediation and proceed with the
hearing.

7. Respondent nos. 6,7 and 8 who are
represented before this Court by Mr. Sanjay
Vikram Singh, Advocate, have chosen not
to file a counter affidavit and have
addressed the Court on merits.

8. The facts for the purpose of this
matter are not in much dispute. This Court
does
not
intend
to
venture
into
determining allegation traded between
parties about matrimonial cruelty which
the wife sets up or whatever the husband
says in rebuttal. The substance of the
matter is that the first petitioner Master
Atharva is a very young child, an infant
aged about two years. He has hardly any
say in the matter about his choice for a
custody. The child being so young, it
brooks little doubt that, being so young,
his needs and welfare would be best
secured in the mother's hand. An infant or
a young child has a very special
relationship with his mother, which no one
else can substitute. So long as the mother
is around, it is incomprehensible to
deprive a young child or an infant, two
years old, of his mother's care and love.
The assumption that a young child's
welfare is best secured in the mother's
hand is no construction of the law. It is a
conclusion dictated by human nature and
the experience of mankind. It finds
statutory embodiment in the provisions of
Section 6(a) of the Hindu Minority and
Guardianship
Act,
1956,
where
the
proviso appended to Section 6(a) is of
particular relevance. Section 6 of the Act,
last mentioned, is extracted below:
182 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. Natural guardians of a Hindu
minor.--The natural guardian of a Hindu
minor, in respect of the minor's person as
well as in respect of the minor's property
(excluding his or her undivided interest in
joint family property), are--

(a) in the case of a boy or an
unmarried girl--the father, and after him,
the mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother;

(b) in case of an illegitimate boy
or an illegitimate unmarried girl--the
mother, and after her, the father;

(c) in the case of a married girl--
the husband: Provided that no person shall
be entitled to act as the natural guardian of
a minor under the provisions of this
section--

(a) if he has ceased to be a Hindu,
or

(b) if he has completely and
finally renounced the world by becoming a
hermit (vanaprastha) or an ascetic (yati or
sanyasi). Explanation.--In this section, the
expression "father" and "mother" do not
include a step-father and a step-mother."

9. A reading of the terms of the
proviso to Section 6 shows that quite apart
from the question of natural guardianship,
the custody of a minor, who has not
completed the age of five years, is to be
ordinarily with the mother. The only niche,
therefore, so far as the statue goes, is the
word "ordinary". The word "ordinary"
signifies that as a matter of rule, children
up to the age of five years are to be left
with their mothers, but there could be
exceptions as well. Those exceptions could
be where the mother is demonstrably
leading an immoral life or may have
remarried, where in her new home, the
child from her earlier alliance has no place,
or where the mother is convicted of a
heinous offence etc. In the present case, no
such circumstance has been indicated,
much less pleaded and proved so as to
place the mother in that exceptional
category where she may be deprived of the
custody of her young child, who is still well
below the age of five years.

10. It must also be remarked that even
after the child turns five, it is not that the
mother becomes disentitled. She still would
be the best person to tender a child and
groom him into an adult. In this connection,
reference may be made to the decision of the
Supreme Court in Roxann Sharma vs. Arun
Sharma, (2015) 8 SCC 318, where it has
been held:

"13. 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 the guardian of the property
of the minor child but not the guardian of his
person whilst the child is less than five years
old. It carves out the exception of interim
custody, in contradistinction of guardianship,
and then specifies that custody should be
given to the mother so long as the child is
below five years in age. We must
immediately clarify that this section or for
that matter any other provision including
those contained in the G and W Act, does not
disqualify the mother to custody of the child
even after the latter's crossing the age of five
years."

11. It is now almost a truism in the
law that in the matter of appointment or a
11 All. Master Atharva (Minor) & Anr. Vs. State of U.P. & Ors.
183
declaration of a guardian or grant of
custody of a minor, the right of the person
seeking custody is not important. It is the
welfare of the minor that is of paramount
importance. That principle is engrafted in
Section 13 of the Hindu Minority and
Guardianship Act and is the golden thread
that runs across various statutes and
transcends jurisdictions, when it comes to
the
question
of
a
decision
about
guardianship or custody. The principles
embodied in the Guardian and Wards Act,
1890 are no different. There are some very
illuminating remarks made with reference
to equally momentous authority by Rajul
Bhargava, J. in Habeas Corpus Writ
Petition No. 3921 of 2018, Aharya
Baranwal and 3 others vs. State of U.P.
and 2 others, that emphasize the principle
of welfare as the paramount consideration
and also the mother's special place in
securing that welfare to a young child.
These remarks come from His Lordship in
the course of dealing with an objection
about the maintainability of a habeas
corpus petition to decide a custody dispute
about a minor. In Aharya Baranwal
(supra) while dealing with the objections as
to maintainability, it has been held:

"21. Sometimes, a writ of habeas
corpus is sought for custody of a minor
child. In such cases also, the paramount
consideration which is required to be kept
in view by a writ-Court is `welfare of the
child'.

22. In Habeas Corpus, Vol. I,
page 581, Bailey states;

"The reputation of the father may
be as stainless as crystal; he may not be
afflicted with the slightest mental, moral or
physical
disqualifications
from
superintending the general welfare of the
infant;
the
mother
may
have
been
separated from him without the shadow of
a pretence of justification; and yet the
interests of the child may imperatively
demand the denial of the father's right and
its continuance with the mother. The tender
age and precarious state of its health
make
the
vigilance
of
the
mother
indispensable to its proper care; for, not
doubting that paternal anxiety would seek
for and obtain the best substitute which
could be procured yet every instinct of
humanity unerringly proclaims that no
substitute can supply the place of her
whose watchfulness over the sleeping
cradle, or waking moments of her
offspring, is prompted by deeper and
holier feeling than the most liberal
allowance of nurses' wages could possibly
stimulate."

23. It is further observed that an
incidental aspect, which has a bearing on
the question, may also be adverted to. In
determining whether it will be for the best
interests of a child to grant its custody to
the father or mother, the Court may
properly consult the child, if it has
sufficient judgment.

24. In Mc Grath, Re, (1893) 1 Ch
143 : 62 LJ Ch 208, Lindley, L.J. observed;

The dominant matter for the
consideration of the Court is the welfare of
the child. But the welfare of the child is not
to be measured by money only nor merely
physical comfort. The word `welfare' must
be taken in its widest sense. The moral or
religious welfare of the child must be
considered as well as its physical wellbeing. Nor can the tie of affection be
disregarded. (emphasis supplied) American
Law

25. Law in the United States is
also
not
different.
In
American
Jurisprudence, Second Edition, Vol. 39;
para 31; page 34, it is stated;

"As a rule, in the selection of a
guardian of a minor, the best interest of the
184 INDIAN LAW REPORTS ALLAHABAD SERIES
child is the paramount consideration, to
which even the rights of parents must
sometimes yield". (emphasis supplied) In
para 148; pp.280-81; it is stated;

"Generally, where the writ of
habeas corpus is prosecuted for the
purpose of determining the right to custody
of a child, the controversy does not involve
the question of personal freedom, because
an infant is presumed to be in the custody
of someone until it attains its majority. The
Court, in passing on the writ in a child
custody case, deals with a matter of an
equitable nature, it is not bound by any
mere legal right of parent or guardian, but
is to give his or her claim to the custody of
the child due weight as a claim founded on
human nature and generally equitable and
just. Therefore, these cases are decided,
not on the legal right of the petitioner to
be relieved from unlawful imprisonment
or detention, as in the case of an adult, but
on the Court's view of the best interests of
those whose welfare requires that they be
in custody of one person or another; and
hence, a court is not bound to deliver a
child into the custody of any claimant or of
any person, but should, in the exercise of a
sound
discretion,
after
careful
consideration of the facts, leave it in such
custody as its welfare at the time appears
to require. In short, the child's welfare is
the supreme consideration, irrespective of
the rights and wrongs of its contending
parents, although the natural rights of the
parents are entitled to consideration.

An application by a parent,
through the medium of a habeas corpus
proceeding, for custody of a child is
addressed to the discretion of the court,
and custody may be withheld from the
parent where it is made clearly to appear
that by reason of unfitness for the trust or
of other sufficient causes the permanent
interests of the child would be sacrificed by
a change of custody. In determining
whether it will be for the best interest of a
child to award its custody to the father or
mother, the Court may properly consult the
child, if it has sufficient judgment".
(emphasis supplied)

26. In Howarth v. Northcott, 152
Conn 460 : 208 A 2nd 540 : 17 ALR 3rd
758; it was stated;

"In habeas corpus proceedings to
determine child custody, the jurisdiction
exercised by the Court rests in such cases
on its inherent equitable powers and exerts
the force of the State, as parens patriae, for
the protection of its infant ward, and the
very nature and scope of the inquiry and
the result sought to be accomplished call
for the exercise of the jurisdiction of a
court of equity". It was further observed;

"The employment of the forms
of habeas corpus in a child custody case is
not for the purpose of testing the legality
of
a
confinement
or
restraint
as
contemplated by the ancient common law
writ, or by statute, but the primary purpose
is to furnish a means by which the court, in
the exercise of its judicial discretion, may
determine what is best for the welfare of
the child, and the decision is reached by a
consideration of the equities involved in the
welfare of the child, against which the legal
rights of no one, including the parents, are
allowed to militate".

 (emphasis supplied)

27. It was also indicated that
ordinarily, the basis for issuance of a writ
of habeas corpus is an illegal detention;
but in the case of such a writ sued out for
the detention of a child, the law is
concerned not so much with the illegality
of the detention as with the welfare of the
child...."(emphasis supplied)"

12. It has been particularly pointed
out here that the father cannot take care of
11 All. Rinku Rukshar Vs. State of U.P. & Ors.
185
the child as he is employed as an Assistant
Teacher and has to stay away from home
almost all day. As already remarked, a
child who is two years old, inevitably needs
his mother more than he does his father. It
is well known that financial capacity is not
the sole index by which the suitability of a
guardian for the minor's custody is to be
judged. It is to be judged on far more
sensitive parameters. For once, if it be
found that the father is financially better of,
that is not a factor that would work against
the mother. This is so because the father
still would have the responsibility to
provide for the minor. If he fails to do so,
the law would take care of it. The father's
financial strength is available to the minor
whether he stays with the father or the
father and the mother living together or the
mother, where the two live apart and
estranged. In the considered opinion of this
Court, therefore, the welfare of the minor
would be best secured in the hands of his
mother, the second petitioner, Smt. Shalini
Singh.

13. In the result, the rule nisi is made
absolute. The minor, Atharva is ordered to be
handed over to the mother, Smt. Shalini Singh
forthwith in Court. The writ petition is allowed.

14. It is further ordered that the father,
respondent no. 6, Mukesh shall have visitation
rights whereunder he shall be entitled to visit his
minor son Master Atharva at Smt. Shalini
Singh's abode twice a week on the Tuesdays
and Saturdays, between 5:00 p.m. to 7:00 p.m.
In case of any obstruction with his visitation
rights, the S.H.O. P.S. Lalpur Pandepur,
Varanasi shall lend necessary assistance to
Mukesh Kumar Singh.

15. Let this order be communicated to
the
S.H.O.,
P.S.,
Lalpur,
Pandeypur
through the S.S.P., Varanasi by the Joint
Registrar (compliance).
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(2020)11ILR A185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

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

Habeas Corpus Writ Petition No. 495 of 2020

Rinku Rukshar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
G.K.
Srivastava,
Sri
Dilip
Kumar
Srivastava

Counsel for the Respondents:
A.G.A., Sri Radhey Shyam

Constitution of India - Article 226-Writ of
habeas corpus- Guardianship and Wards
Act, 1890 - Maintainability- The question
of the custody being lawful or unlawful
has to be seen in some measure with the
origin of the complaint or the transaction
through which the custody has been taken
away by one parent or the other, when
they have separated- This principle about
the
welfare
of
the
child
being
of
paramount consideration, working to the
exclusion of all entitlement under the
personal laws, is well recognized. Once
the Court finds that the custody with one
parent subserves the welfare of the minor
best, the custody with the other becomes
unlawful enough to be corrected by way of
a habeas corpus. If it can be determined
on obvious facts, not much in dispute, the
writ must issue or be refused on merits
according to the conclusion reached.

A writ of habeas corpus would be maintainable
upon the consideration of the transaction
resulting in the custody being taken away by