# Master Devansh Agarwal (Detenue) v. State of U.P. & Ors - **Citation:** (2021) 11 ILRA 1114 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-14 - **Bench:** Vikas Kunvar Srivastav - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-devansh-agarwal-detenue-v-state-of-u-p-ors-46518 - **Pages:** 30 ## Headnote Civil Law - Custody of Minor - Constitution of India, Article 226 - Habeas Corpus Petition - Illegal abduction of minor by the father from custody of mother - Mother sought custody of her minor child from father - Held - act of the father of the child of deceitfully taking away the child out from custody of mother amounts to parental kidnapping which is not only illegal but criminal also - as the child has been illegally snatched away from mother, writ of habeas corpus petition maintainable - Bench of High Court Allahabad, at Lucknow has jurisdiction as the child was born in Lucknow and resided there with the mother till he was fraudulently taken away by father from Lucknow to Dhanbad - father, who fraudulently took away the custody of the child, from an area falling within the jurisdiction of the court to Dhanbad, cannot take stand that petition is not maintainable at Lucknow - in the present case several orders of the court with regard to facilitate the meeting of the mother with the child, were flouted over by the father - there is reason to believe that father in furtherance of his malice towards mother will brain wash the child towards his mother that would not be in the interest and welfare of the child - mother is competent enough to take care and upbring the child with love and affection - mother deserves to have custody of the child removing the same from the father - father will be at liberty to get finally decided his rights of exclusive custody as guardian by the family court or court of Guardians and Wards Act (Para 39, 45, 49, 84, 85) Disposed Off. (E-5) Cases Relied on: ## Text _Characters 0–39,898 of 113,020. This is a partial read: ask again with offset=39898 for what follows._ 1114 INDIAN LAW REPORTS ALLAHABAD SERIES (2021)12ILR A1114 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 14.12.2021 BEFORE THE HON'BLE VIKAS KUNVAR SRIVASTAV, J. Habeas Corpus W.P. No. 9307 OF 2020 Master Devansh Agarwal (Detenue) ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioners: Arun Sinha, Siddhartha Sinha Counsel for the Respondents: Sri Anurag Singh Chauhan (Govt. Adv.), Deepak Agarwal, Gavrav Mishra, Lalit Mohan Singh, Mr. Nirmit Srivastava, Mr. Prabhjit Jauhari, R.P. Shukla, Vivek Sonkar Civil Law - Custody of Minor - Constitution of India, Article 226 - Habeas Corpus Petition - Illegal abduction of minor by the father from custody of mother - Mother sought custody of her minor child from father - Held - act of the father of the child of deceitfully taking away the child out from custody of mother amounts to parental kidnapping which is not only illegal but criminal also - as the child has been illegally snatched away from mother, writ of habeas corpus petition maintainable - Bench of High Court Allahabad, at Lucknow has jurisdiction as the child was born in Lucknow and resided there with the mother till he was fraudulently taken away by father from Lucknow to Dhanbad - father, who fraudulently took away the custody of the child, from an area falling within the jurisdiction of the court to Dhanbad, cannot take stand that petition is not maintainable at Lucknow - in the present case several orders of the court with regard to facilitate the meeting of the mother with the child, were flouted over by the father - there is reason to believe that father in furtherance of his malice towards mother will brain wash the child towards his mother that would not be in the interest and welfare of the child - mother is competent enough to take care and upbring the child with love and affection - mother deserves to have custody of the child removing the same from the father - father will be at liberty to get finally decided his rights of exclusive custody as guardian by the family court or court of Guardians and Wards Act (Para 39, 45, 49, 84, 85) Disposed Off. (E-5) Cases Relied on: 1. Roxann Sharma Vs Arun Sharma (2015) 8 SCC 318 2. Meenakshi & anr. Vs St. of U.P. & ors.(2020) 143 ALR 841 3. Shigorika Singh Thru. her mother Vs Dr. Abhinandan Singh & ors. Habeas Corpus No.8820 of 2020 (All.) decided on 22.2.2021 4. Vahin Saxena (Minor Corpus) & anr. Vs St. of U.P. & ors. Habeas Corpus No.467 of 2021 (All.) decided on 27.8.2021 5. Reshu @ Nitya & ors. Vs St. of U.P. & ors. Habeas Corpus No.9 of 2020 (All.) decided on 22.10.2021 6. Ruchi Majoo Vs Sanjeev Majoo (2011) 6 SCC 479 7. Anil Kumar Pradhan & ors. Vs Madhabi Pradhan FAO No. 254 of 2014 decided on 15.10.2015 8.Tejasvini Gaud & ors. Vs Shekhar Jagdish Prasad Tewari & ors. (2019) 7 SCC 42 9. Kusheshwar Prasad Singh Vs St. of Bihar & ors. (2007) 11 SCC 447 10. Mrs. Elizabeth Dinshaw Vs Arvind M. Dinshaw & anr. (1987) 1 SCC 42 11. Gippy Arora Vs St. of Pun. & ors.(2008) SCC Online P & H 1483 12. Githa Hariharan Vs Reserve Bank of India and Vandana Shiva Vs Jayanta Bandopadhyaya (1999) 2 SCC 228 13. Yashita Sahu Vs St. of Raj. (2020) 3 SCC 67 11 All. Master Devansh Agarwal (Detenue) Vs. State of U.P. & Ors. 1115 14. Manjit Kaur Vs St. of Pun. Crl. W.P No.608 of 2008 (P & H) decided on 14.8.2008 15. Manju Tiwari Vs Rajendra Tiwari AIR 1990 SC 1156 16. S.P. Chengalvarajna Naidu (dead) by Lrs Vs Jagannath 1994 1 SCC 1 17. Capt. Dushyant Somal Vs Sushma Somal (1981) 2 SCC 277 18. Eugenia Archetti Abdullah Vs St. of Kerala 2005 (1) RCR (Clr.) 259 19. Gaurav Nagpal Vs Sumedha Nagpal (2009) 1 SCC 42 20. Anjali Kapoor (Smt.) Vs Rajiv Baijal (2009) 7 SCC 322 21 Sumedha Nagpal Vs St. of Delhi & Ors. (2000) 9 SCC 745 22. Rosy Jacob Vs Jacob A. Chakramakkal (1973) 1 SCC 840 23. Mausami Moitra Ganguli Vs Jayant Ganguli (2008) 7 SCC 673 (Delivered by Hon'ble Vikas Kunvar Srivastav, J.) 1. Heard learned counsel fort the petitioner, Sri Siddhartha Sinha, Advocate, learned counsel for the opposite party No.3 to 6, Ms. Rose Mary Raju, Advocate and learned A.G.A. for the State, Sri Anurag Singh Chauhan, Advocate. 2. The instant petition in hand is filed under Article 226 of the Constitution of India seeking issuance of writ in the nature of habeas corpus for production of a minor infant child, the petitioner no.1, namely, Master Devansh Agarwal (the detenue) through his mother, Smt. Deepti Goyal (daughter of Sri K.K. Agarwal), both resident of B-47, Sector-H, Aliganj, District-Lucknow. Smt. Deepti Goyal herself is arrayed in the petition as petitioner no.2. 3. The relief claimed in the petition is reproduced hereunder:- (i) Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite parties to produce the petitioner No.1/ Detenue and handover his custody to the petitioner No.2. (ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. A. Factual Matrix 4. The pleadings indicate the relation between opposite party no.3 Dr. Dinesh Agarwal and petitioner no.2 as husband and wife. They have serious differences which lead to cleavage in their matrimonial life, resulting their non judicial separation from matrimonial home situated at Katras Bazar Rajbari Road, Katras, Dhanbad, Jharkhand. The petition discloses that petitioner No.2 and opposite party No.3 married on 30.6.2017. Soon after marriage Dr. Dinesh Agarwal, opposite party no.3 and his family members started demanding Rs.40 lacs in dowry from the petitioner no.2 as opposite party no.3 came to know that she has a P.P.F. account worth more than Rs.40 lacs. Apart from the said demand of dowry, the opposite party no.3 and his family members namely petitioner's fatherin-law, Sri Jeewan Lal Agrawal and others started torturing her mentally and physically in connection with the said demand. Due to the harassment, petitioner no.1 was compulsed to live in Lucknow most of the time where the petitioner no.1, detenue was born on 3.7.2018. Petitioner no.1 and 2 were brought by the opposite party no.3 to Dhanbad after birth of detenue but due to constant harassment petitioner no.2 forced to come back to Lucknow with petitioner no.1 by the end of February, 2020 and had been staying in Lucknow ever since. 1116 INDIAN LAW REPORTS ALLAHABAD SERIES 5. On 6.6.2020, the opposite party no.3 suddenly came to the house of the petitioner no.2 and pretended that he wants to reconcile with the petitioner no.2. He stayed there, but on the next morning at about 9 O'clock, the opposite party no.3 pretended to take the child out from the house. He taken away the detenue, petitioner no.1 assuring the petitioner no.2 to come back after having a short drive with him. Opposite party no.3 even left his luggage at the house of petitioner no.2 to assure and keep her into impression that he will return with the petitioner no.1 but actually he ran away and kidnapped the petitioner no.1 detenue with the help of his driver. After that petitioner no.2 through their common friend came to know that the opposite party no.3 have reached at Katras, District- Dhanbad, State of Jharkhand taking away the detenue with him illegally from the custody of petitioner no.2. Petitioner no.2 when contacted the opposite party no.3, he told that petitioner no.2 should give access of her P.P.F. account to him if she wants petitioner no.1, detenue back. 6. Since the incident dated 7.6.2020 of abduction of petitioner no.1, the child is by his father (the opposite party no.3), he is in custody of father in Katras, District Dhanbad in the State of Jharkhand. This gave rise to the inter parental custody dispute pertaining to their minor child. For the purpose of brevity and convenience hereinafter in foregoing paras wherever contextually needed the opposite party no.3, the petitioner no.2 and the petitioner no.1 shall be addressed also as ''father' ''mother' and ''the child/detenue' respectively. 7. At the time of incident the child detenue (petitioner no.1) was an infant of about 1 year and 9 months' age. The mother has stated that the detenue child is dependent on mother's milk and needs such care and protection which father cannot provide. She is highly educated lady, qualified in M.B.A. Finance and Human Resources, had worked as Assistant Professor in B.B.D. University at Lucknow but quit her job to take care of her child. She has been taking care of her child financially or otherwise since his birth and petitioner no.1, the detenue has never been parted from the petitioner no.2. She has a constant source of income being generated from her savings and residing with her parents in their own house at Lucknow. In support of her claim as to the financial competence, the petitioner no.2 has filed Income Tax Return of year 2019-20 issued by the Income Tax Department as Annexure-2, wherein the gross income is shown Rs.5,16,328/-. In the night of 6.6.2020, the opposite party no.3 landed at the house of the petitioner no.2 and virtually snatched away and kidnapped the child in the morning of 7.6.2020 pretending to come back after a short drive with the child. 8. The petition was filed on 15.6.2020 and was first taken up on 18.6.2020. On 13.7.2020, this court has observed, relevant portion of the order is extracted and reproduced hereunder:- "Hon'ble Virendra Kumar Srivastava, J. Learned counsel for the petitioner submits that detenue aged about two years has been illegally snatched from the custody of petitioner no.2 and herculean effort was made by the concerned police to trace out the detenue but since the opposite party nos.3 and 4 are residents of Jharkhand State, the concerned local police is not cooperating with the U.P. Police in absence of any specific direction of this Court. Learned AGA submits that effort was made to search out the detenue but the detenue could not be traced out. In view of the above, issue notice to opposite party nos.3 to 6 through opposite party no. 2 i.e. Station House Officer, Police Station Aliganj, Lucknow to produce the detenue Master Devansh on 05.08.2020." 11 All. Master Devansh Agarwal (Detenue) Vs. State of U.P. & Ors. 1117 9. Again on 5.8.2020, the court has observed, relevant portion is extracted and reproduced hereunder:- "Hon'ble Abdul Moin,J. Sri R.P. Shukla, learned counsel for respondent nos. 3 to 6, submits that in pursuance to the order of this Court dated 13.07.2020, the child Master Devansh Agarwal could not be produced today as he is not well. A copy of the medical prescription dated 03.08.2020 has been produced today in Court. Sri Shukla prays for and is granted a week's time for bringing on record the said medical prescription and he would also indicate the medical condition of the child. The medical condition to be indicated on behalf of respondent nos. 3 to 6 would also indicate the medical certificate from a doctor as to whether the child is fit to travel from Jharkhand to Lucknow and in case the certificate does not indicate so then the child shall be produced before this Court on 14.08.2020." 10. The order dated 5.8.2020 of this court recorded the appearance of the opposite parties no. 3 to 6 for the first time through Sri R.P. Shukla and Gaurav Mishra Advocates with filing of the counter affidavit on their behalf. 11. On 20.1.2021, this court has passed following order:- "Hon'ble Alok Mathur,J. 1. Heard Sri Siddhartha Sinha, learned counsel for the petitioners as well as learned A.G.A. for the State while Sri Vivek Sonkar, Advocate has put in appearance on behalf of opposite party No.s 3 to 6. 2. An application for recall of order dated 11.1.2021 along with vakalatnama has been filed in the registry by Sri Vivek Sonkar on 19.11.2020. Office has reported that it has not been able to trace any such application for recall of order dated 11.1.2021. In absence of the application for recall, I proceed with the matter. 3. It has been submitted by Sri Siddhartha Sinha that this Court by means of order dated 17.3.2020 had directed opposite party No.s 3 and 6 to produce the detenue Master Devansh Agrawal on 5.8.2020. A perusal of the order sheet dated 5.8.2020 indicates that on 5.8.2020 the detenue could not be produced and, therefore, by means of the order dated 5.8.2020 this Court directed for production of the detenue on 14.8.2020. It has been submitted that there was no sitting of this Court on the said date due to COVID 19 lock-down, therefore, this Court by means of order dated 27.8.2020 directed the detenue to be produced on 8.9.2020, on which date also there was no Court sitting due to the pandemic. It has been submitted that in the meanwhile opposite party No.2 in order to avoid producing the detenue moved an application for recall of the order dated 27.8.2020 which was rejected on 14.10.2020. Subsequently, on 11.1.2021 this Court directed for production of the detenue today i.e. 20.1.2021. 4. When the matter has been taken up Sri Vivek Sonkar, the new counsel appearing for opposite parties No.3 to 6, could not show any cogent reason for non-appearance of the detenue as directed by this Court vide its order dated 20.1.2021 today. He, however, submits that opposite party No.3 is in Jharkhand and they will appear on any date fixed by this Court. It has also been informed that as per direction of this Court a sum of Rs.30,000/- has already been deposited in this Court to show the bonafide and also to enable opposite party No.3 along with the detenue to appear before this Court. 5. In view of above, I see no reason as to why opposite party No.3 is not appearing before this Court along with the detenue. As, such, list this case on 28.1.2021 on which date opposite party No.3 shall appear before this Court along with the detenue Master Devansh Agarwal. 1118 INDIAN LAW REPORTS ALLAHABAD SERIES 6. It is made clear that if this order is not complied with, the Court will have no option except to adopt coercive methods for their appearance." 12. Hon'ble Apex Court in Special Leave to Appeal (Crl.) No.586 of 2021 moved against the order dated 20.1.2021 has held as under:- "The High Court directed the petitioner No.1 to be present in Court on 20.1.2021 along with the child in a writ of Habeas Corpus filed by the respondent No.3. We are informed by the learned counsel for the petitioners that the matter is now listed for hearing on 28.01.2021. Learned counsel for the petitioners brought to our notice an order passed by this court on 11.01.2021 in Transfer Petition (c) Nos.13711372 of 2020 filed by Respondent No.3 by which the matrimonial dispute has been referred to the Supreme court Mediation Centre. We are not inclined to interfere with the order impugned in the special leave petition. However, the petitioner is at liberty to bring to the notice of the High Court that the entire dispute is referred to the Supreme Court Mediation Centre and the transfer petition was directed to be listed after eight weeks. The special leave petition is dismissed. Pending application (s), if any, shall stand disposed of." 13. Though, counter affidavit was filed by the opposite party no. 3 to 6 but in compliance of the order of this court the detenue, 'Master Devansh Agrawal' was not produced before the court. It would be relevant to quote the order dated 28.1.2021, where the conduct of counsel appearing for the opposite party no.3 to 6 was observed by this court "Hon'ble Alok Mathur,J. 1. Today when the matter has been taken up Sri Deepak Agrawal, Advocate has put in appearance on behalf of respondent no. 3. He has placed an order of Hon'ble Supreme Court dated 25.01.2021, passed in SLP (Civil) No. 586 of 2021. According to which it seems that one transfer application has been preferred before the Apex Court where the present matrimonial dispute has been referred to the Mediation Center of the Apex Court. The aforesaid SLP was filed against the earlier order of this Court dated 20.01.2021, where this Court had directed respondent no. 3 to appear before this Court alongwith detenue Master Devansh Agarwal. 2. Perused the order of Apex Court dated 25.01.2021. 3. Today, attention of this Court has been drawn towards the order of the Apex Court dated 11.01.2021, passed in Transfer Petition (Civil) No. 1371 of 2020. 4. The conduct of the counsel appearing for opposite party no. 3 is highly regrettable inasmuch as, the earlier orders passed by the Hon'ble Apex Court were never brought to the notice of this Court, which lead this Court to pass the order dated 20.01.2021. 5. In the light of the apology made by learned counsel appearing for respondent no. 3, this Court is not passing any further order in this regard. 6. Looking into the order of the Apex Court dated 11.01.2021, as well as 25.01.2021, list this case after two month's. 7. Learned counsel for the parties shall inform this Court, on the next date of listing, about the outcome of the mediation proceedings at Supreme Court." 14. The petitioner by way of supplementary affidavit has furnished information as to the proceeding of Hon'ble Apex Court stating that the opposite party no.3 challenged the order dated 20.1.2021 passed by this court. Hon'ble Supreme Court in Special Leave to Appeal No. 586 of 2021 referred the matter to Supreme Court's Mediation Center and 11 All. Master Devansh Agarwal (Detenue) Vs. State of U.P. & Ors. 1119 dismissed the aforesaid Special Leave to Appeal vide order dated 25.1.2021. The order dated 25.1.2021 of the Apex Court is made annexure to the petition. In pursuance of order dated 25.1.2021, the parties appear before the Mediation Center of Hon'ble Supreme Court and after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute, as such, the mediation failed. The true copy of the Mediation Report is made annexure no.2 to the supplementary affidavit, which is reproduced hereunder:- "Comprehensive mediation sessions were held with parties on 01.02.21, 02.01.21 & 04.02.21 through virtual mode and on 08.02.21 physical mediation at Supreme Court Mediation Centre. However, after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute." 15. The petitioner has informed this court by way of the supplementary affidavit about two original suits of the opposite party no.3 against petitioner no.2 in para 6, which is reproduced hereunder:- "6. That the opposite party no.3 to this Writ Petition filed two frivolous cases against the petitioner no.2 at Dhanbad vide O.S. No.333/2020 and O.S. No.385/2020. The petitioner no.2 challenged the same in Hon'ble Supreme Court in Transfer Petition Nos (Civil) Nos.1371-1372/2020. The Hon'ble Supreme Court was pleased to say the proceedings of the cases O.S. No.333/2020 and O.S. No.385/2020. The true copies of the order dated 7.12.2020 and 11.01.2021 passed in Transfer Petition (Civil) No.1371-1372/2020 is being filed herewith as Annexure No.SA-3." 16. Despite the orders passed by this court the child was not produced by the opposite party no.3 in the court. On 24.9.2021, this court has ordered for facilitating a meeting between the detenue and mother by the opposite party number 3, the order is quoted hereunder:- "Hon'ble Manish Mathur,J. Adjourned on account of request made of Mr. Prabhjit Jauhar, learned counsel for the respondents No.3 to 6 due to his personal engagement. Heard learned counsel for the petitioner and Mrs. Rose Mary Raju on behalf of the respondents No.3 to 6. Due to adjournment of the matter, learned counsel for appellants submits that the mother of the alleged detenue is not being permitted to meet the detenue aged about three years. With regard to the matter pertaining to mediation or any settlement between the parties, it has been informed that mediation proceedings before the Hon'ble the Supreme Court have failed. Considering submissions of learned counsel for the appellant/mother of the detenue, learned counsel for the parties were provided time to obtain instructions for facilitating a meeting between the detenue and the mother. Upon obtaining instructions from the clients, learned counsel appearing for respondents no.3 to 6 submits that no hindrance will be caused in meeting of the mother with the detenue and for that purpose the mother of the detenue can travel to Dhanbad (where the detenue is staying with his father). It is submitted that the father of the detenue shall take care of the burden of financial expenditure pertaining to travel as well as stay of the mother at Dhanbad, where she will have unrestricted excess to the detenue during the day time, commencing from 10:00 AM to 05:00 PM. For the purpose of the such meeting, a person of the Bal Kalyan Samiti, Dhanbad shall be present during the meeting which shall 1120 INDIAN LAW REPORTS ALLAHABAD SERIES be facilitated by the Superintendent of Police, Dhanbad. As per the arrangements, meeting shall take place at a mutually agreeable place and may take place in Lucknow itself with the mutual consent of parties, if possible. In case the meeting take place at Lucknow, the same procedure shall be followed, for which the Concerned SHO, Lucknow shall ensure presence of a person from the Bal Kalyan Samiti. List this case on 01.11.2021." 17. In the petition, petitioner no.2 has also stated about lodging of the first information report with regard to the abduction of the petitioner No.1, detenue by the opposite party no.3 as Case Crime No. 178 of 2020 under sections 498-A, 336, 506 I.P.C. and Section 3/4 Dowry Prohibition Act. 18. The counter affidavit filed on behalf of the opposite party no.3 to 6 has set forth a defence against the allegation made in the petition pertaining to illegally taking away the detenue (petitioner no.1), the child from the custody of mother, (petitioner no.2). In para 25, it is stated that petitioner no.1 was neither kidnapped nor taken away forcibly, the petitioner no.1 is not in the illegal custody of his natural guardian, petitioner no.2 has not invoked the remedy provided under the law to declare the guardianship which can be decided on the facts and evidences adduced by the parties. Further para 26 of the counter affidavit is reproduced hereunder:- "26. That the contents of paragraph 13 of the writ petition are denied as incorrect. Since the opposite party no.3 is also the natural guardian therefore no FIR could have been lodged questioning his guardianship. The delay in lodging the FIR itself speaks that the same is being thought and false. Moreover, the falsity of the FIR is apparent on the face of it as avernments made in paras 11 and 12 of the writ application and that in the FIR are completely different versions. In the writ application she has averred that the deponent with her permission took the child but did not return and in the FIR she has alleged that the child was snatched from her custody and kidnapped by the deponent." 19. With regard to the relief prayed by the petitioner no.2 in her petition for handing over the custody of minor child, the petitioner no.1 to her from the custody of opposite party no.3, the father, in para 7 of the counter affidavit it is objected that according to the law laid down by Hon'ble Apex Court and High Courts, the principal consideration for the court is to ascertain whether the custody of the children requires that the present custody should be changed, and the children should be left in the 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 for the court. 20. Further, father of the detenue child (opposite party no.3) claims himself according to the Section 6 of the Hindu Minority and Guardianship Act, 1956 his natural guardian and is capable of looking after the child. The child in his parental place getting love and affection of father, grand parents and cousins as he lives in joint family. To the contrary petitioner no.2 does not take proper care of the child as for the care of child she totally depend on maid and servants of nuclear family in her house at Lucknow. She is also suspected to be suffering from "Paranoid Personality Disorder" and often remain socially withdrawn. The opposite party no.3 claimed himself reputed Orthopedic and Spine Surgeon practicing in Katras, Dhanbad in the State of Jharkhand, is capable of care of child and also financially sound to do so. With a view to clarify why the opposite party no.3 and petitioner no.2, the husband and wife living separately, he stated in para 12 and 13 of the counter affidavit that 11 All. Master Devansh Agarwal (Detenue) Vs. State of U.P. & Ors. 1121 due to her obstinate behaviour, petitioner no.2 was forced to take separate accommodation out of the joint family and shifted on 5.11.2018 against his conscience but instead of living there, petitioner no.2 left the matrimonial house on 7.3.2020 without any cause and information to the opposite party no.3, efforts were made to convince the petitioner no.2 to return to matrimonial home but she patently refused. Petitioner no.2 lodged an First Information Report No.178 of 2020 arraigning the entire family members on baseless allegations. He filed a writ petition bearing number 9964 (MB) of 2020 before this court which was disposed of vide order dated 19.6.2020, in view of the law laid down by Hon'ble Supreme court in the case of Arnesh Kumar 2006 SCC 2622. Further, entire dispute have been referred to the Mediation Center of the Family Court by the police and the case has been fixed for appearance of the parties. 21. It is further stated in para 17 of the counter affidavit that opposite party no.3 is inclined to restore his matrimonial ties, therefore, he has filed a suit before Family Court, Dhanbad invoking the provisions of Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The child is in fact an essential bridge between the opposite party no.3 and petition no.2, copy of the plaint is made annexure to the petition. 22. Admittedly, the petitioner no.1, the detenue taken birth in the city of Lucknow. In para 22 the opposite party no.3 in his counter affidavit explained it by saying that petitioner no.2 has been in regular habit of living in Lucknow at her parents house and she never own responsibility of her husband and child. The allegation regarding the birth of child at Lucknow at her expenses is also false and unfounded. The deponent being a doctor made all arrangement for delivery of child in Katras, Dhanbad but the wife insisted to deliver the child in Lucknow, she is under the influence of mother all the time and very rigid. He further states in the same para that even after the delivery she refused to come back with opposite party no.3, however, he paid in cash Rs.50,000/- to her for child expenses. In para 23 of the counter affidavit, he has stated that petitioner no.2 has herself deserted the matrimonial house. 23. Apart of the aforesaid factual pleas, the said opposite party no.3 has challenged the maintainability of the writ petition on the ground that he being natural guardian of the petitioner no.1 in view of Section 6 of the the Hindu Minority and Guardianship Act, 1956 the father has paramount right for the custody of child and he cannot be deprived of the custody of minor child, his custody is not unlawful or conducive to the interest and welfare of child so as to warrant interference by the court. The habeas corpus petition shall not be the appropriate proceeding to make a decision as to who between the husband and wife shall be entitled to the custody of child. It needs elaborate enquiry on the basis of evidences to be led by both the parties which can be conveniently done only in civil or family court. 24. The opposite party no.3 has taken an objection as to the maintainability that under Article 226(1) of the Constitution of India. The power to issue writ to the government authority or the person concerned is to be exercise by the High Court having the territorial jurisdiction. In the instant case, the permanent residence of the child in Dhanbad and falls within the jurisdiction of Jharkhand High Court, therefore, this court has no territorial jurisdiction to entertain the petition for removal of custody from father and to handover the child to the mother. 25. For the purpose of considering paramount consideration of child in not disturbing the present position of custody of the child with father, he has setforth his financial 1122 INDIAN LAW REPORTS ALLAHABAD SERIES capacity and social status and family status also. Despite having been filed a huge and lengthy counter affidavit dealing all aspects of the case, legal and factual, the opposite party no.3 has not stated or explained why he has not produced the detenue before the court in compliance of the order in this regard. Though, admittedly he has taken away the child with him (according to him with the consent of mother of the child) from Lucknow to Dhanbad. On the direction of this court issued vide order dated 5.8.2020. He filed a supplementary counter affidavit annexing medical certificate as to the medical advice and opinion of a doctor in Dhanbad, Jharkhand, the same is reproduced hereunder:- "This is to certify that I have examined Master Devansh Agarwal, aged 2 years on 3rd and 8th August 2020. He was suffering from upper respiratory tract infection (URI) and was diagnosed as Pharyngitis after clinical evaluation. This is an allergic and seasonal type of disorder. I have treated him with antibiotic and anti-allergic. He has recovered well from the ailment and doing well. I have advised him to stay away from cold weather and drinks. It is not advisable for him to travel to long distance in AC care or train in view of the prevailing COVID 10 Epidemic." 26. In the aforesaid context, it would be relevant to quote certain para of the counter affidavit filed by the State of U.P. in the present petition. The said counter affidavit is sworn by Manoj Kumar, Sub Inspector, Police Station, Aliganj, Lucknow, Investigating Officer of the Case Crime No.178 of 2020 referred hereinabove. The relevant paras from para no.7 to 15 of the counter affidavit are quoted hereunder:- "7. That on 24.6.2020, the deponent alongwith one male and a female constable and also with complainant and her brother proceeded for P.S. Kartas, Dist. Dhandbad, Jharkhand and intimated his arrival/visit in P.S. Kartas, Dist. Dhanbad on 25.06.2020. He had submitted an application to the SHO and along with him contacted to the deputy S.P., who had called Dr. Dinesh Agrawal for mediation but he did not turn up. For getting the judicial custody of detenue, the deponent personally requested to SSP, who had suggested to contact-Bal Kalyan Samit. A copy of proceedings recorded in CD-7 is being annexed as Annexure No.SCA 4 to this affidavit. 8. That on 26.06.2020 the deponent and his police team along with the complainant also with the help of S.H.O.- P.S. Kartas, Dist. Dhanbad visited to the house of Dr. Dinesh Agrawal where Bhabhi of Dinesh Agrawal and his cousin brother were present but Dr. Dinesh Agarwal and his parents were not available. Dr. Dinesh Agrawal was telephonically contacted, and he was asked to bring the detenue at police station Kartas. Dinesh Agrawal then replied that he was in Bokaro at that time and it was not possible for him to reach there. The police team and the complainant once again approached to the S.S.P. Dhanbad and requested for ensuring the recovery of detenue, who in response assured that S.H.O. and D.S.P. will help us. The Deputy S.P. had assured that Dinesh Agarwal will appear before the Hon'ble Court at Lucknow. Our police team had also approached to the Commissioner/DM for recovery of detenue. The true copy of notice under Section 41 (1) AB of the Cr.P.C., pasted over the house of Dr. Dinesh Agrawal and the preceding recorded in case diary with the heading CD-8 are being annexed as Annexure Nos. SCA 5 and 6., to this affidavit. 9. That on 27th June 2020, the police party of P.S. Aliganj alongwith local police reached to the permanent house of Dr. Dinesh Agarwal situated in Kartas Bazar Rajwadi Road, Dhanbad. His house was locked from outside and no information could be gathered. Thereafter the clinic of Dr. Dinesh Agrawal was 11 All. Master Devansh Agarwal (Detenue) Vs. State of U.P. & Ors. 1123 also visited where it was revealed that Dr. Dinesh Agrawal had lastly visited on 23 Jan 2020 and since then he did not visit the hospital/clinic. 10. That Bal Kalyan Samiti, Dhanbad was also approached for recovery of the child. Members of said Samiti assured that a notice will be sent to Dr. Dinesh Agrawal for production of child and after recovery of the detenue the police team of Lucknow will be intimated in this regard. CD-9 of the case diary is being annexed as Annexure No.SCA-7 to this affidavit. 11. That on 27.07.2020, Mr. Vivek Kumar Singh, Advocate handed over an application alongwith the orders passed by this Hon'ble Court in Writ Petition No.9964/2020 and requested to fix the date of 29.06.2020 for appearance of accused persons. 12. That on 29.06.2020, Dr. Dinesh Agarwal appraoched to P.S. Aliganj and had given his application/undertaking that he will abide by the order passed by this Hon'ble Court in present Habeas Corpus Petition. A true copy of proceedings recorded in CD-11 and the application submitted by Dr. Dinesh Agarwal is being collectively and annexed as Annexure No.-SCA 8 to this affidavit. 13. That a detailed report dated 05.07.2020 mentioning the steps taken by police of P.S. Aliganj, District Lucknow was submitted to the office of Ld. Government Advocate, Lucknow Bench. A copy of report dated 05.07.2020 is being and annexed as Annexure No.-SCA to this affidavit. 14. That on 27.07.2020, the deponent posted a letter to the opposite parties 3-6, mentioning there in that in present Habeas Corpus petition this Hon'ble Court vide it's order dated 13th of July 2020, has been pleased to direct them to appear before this Hon'ble Court and to produce detenue on 05.08.2020. A true copy of letter dated 27-07-2020 is being annexed as Annexure No.-SCA-10 to this affidavit. 15. That in compliance of the orders passed by this Hon'ble Court and also in furtherance of letter dated 31 July 2020 issued by C.J.M. Lucknow, for ensuring the personal appearance of opposite party number 3 to 6 in present Habeas Corpus petition, constable Vikas Sehgal of police station- Aliganj, was deputed to serve the notice personally, upon opposite party number 3 to 6. The said notice was served upon the opposite party 3 to 6. The said notice was served upon the opposite party 3-6 on 02.08.2020 at their Dhanbad address." B. Arguments. 27. Heard the learned counsels for the parties. It is argued by the learned counsel for the petitioner No.2 that out of the wedlock between the father and mother of the child, he borne on 3.7.2018 in Lucknow. It is further argued that the mother who carried the child in her womb for 9 months and then gave birth to him, the child used to reside in the house B-47, Sector H, Aliganj, District-Lucknow. The child was never parted from her mother before 7.7.2020 when he was illegally taken away from her custody. The mother is well educated having M.B.A. in Finance and Human Resource, she is physically, financially and emotionally very much eligible for taking care of child in every way. It is further argued that there was repeated demand of dowry of Rs. 40 lacs by father of the child (opposite party no.3) since before his birth. When the atrocities and cruelties of the father of the child in connection with the demand of dowry increased day by day, she was compulsed to leave her matrimonial home in Dhanbad, Jharkhand and to go to Lucknow before delivery of the child. All the cost and expenses of delivery of the child were incurred by her. She has a constant source of earning accrued from the interest over her savings in the Bank. It is further argued that mother was in a reputed job of teaching but since birth of child only for the purpose of looking after him and care she left 1124 INDIAN LAW REPORTS ALLAHABAD SERIES that job. It is argued that the way in which the custody of the minor infant child of approximately 21 months was snatched deceitfully from mother and he was abducted by the father who taken away him from Lucknow to Dhanbad in the State of Jharkhand itself amount not only immoral but a criminal act also. Further despite several orders of the court to appear in person and produce the child before the court, father intentionally defied the order and thus maliciously stopped the child to see her mother. It is evident from the order of this court also passed to facilitate the meeting of the mother with the child but the same was disobeyed. Even the mother has deposited Rs.30,000/- in the High Court in compliance of the order of the court as expenses for arriving at Lucknow from Dhanbad with the child and companion, if any. The money still remain unexhausted in the court's account but that order was also made futile by the father. All these shows the instinct of the father to illegally confine the child with him and not permitting him to see his mother in anyway daringly. It is further argued that the detention of the child is not by the reason of love and affection of father towards the child but it is in vengeance of mother's leaving the matrimonial home, so as to teach her a lesson. Moreover, to bargain the demand of dowry of Rs.40 lacs in lieu of the child to go back to her mother. 28. Learned counsel had argued that the child is of much tender age, he needs his mother at this stage and nothing can replace the love affection and care of the mother to which he is entitled. If he is left in the custody of father and his relatives it is much possible for them to make his brain wash and influence him against her mother. Keeping into view all these facts it is emphasized that in the light of judgments of the Hon'ble The Apex Court and this court the welfare of the child be considered and child be removed from the custody of father to hand over him in the custody of mother. Reliance placed on the judgment of Apex Court in the case of Roxann Sharma Vs. Arun Sharma1 and the judgment of this court in Meenakshi and Anr. Vs State of U.P. and Others2 and in Shigorika Singh Thru. her mother Vs. Dr. Abhinandan Singh and Others3. 29. Against the contention of of the counsel for the petitioner, counsel for the opposite party number 3 to 6 argued that the mother unreasonably left the matrimonial house when she was conceived, even on her insisting and denial to live in joint family separate accommodation was arranged by father of the child but she reached in Lucknow on the motivation of her mother who is a dominating lady. It is further contended that father is practicing doctor in Orthopedic and is a Spine Surgeon, belongs to a reputed family, has a clinic in Katras at Dhanbad, State of Jharkhand. He is permanent resident of the aforesaid place, therefore, child should reasonably be stayed with the father.