# Master Hiras & Anr v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-16
- **Case number:** Habeas Corpus Writ Petition No. 949 of 2023
- **Bench:** Dr. YOGENDRA KUMAR SRIVASTAVA
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-hiras-anr-v-state-of-u-p-ors-51880
- **Pages:** 4

## Headnote

Constitution of India, 1950 - Article 226 -
Guardians and Wards Act, 1890 - Sections
12, 17 - Principles of Mahomedan Law -
Sections 349, 351 & 352 - Habeas Corpus
- Custody of Minor - Illegal Detention -
Natural Guardianship - Welfare of Minor -
The petitioners, Master Hiras (minor corpus,
aged about 2 years, born on 01.01.2022) and
his father (petitioner no. 2), filed a habeas
corpus petition asserting that the minor was
illegally detained by respondent no. 4, the wife
of petitioner no. 2's brother, who had a strained
relationship with her husband. The minor was
taken by respondent no. 4 on 27.11.2022 when
she left the joint family home to reside at her
maternal home. The petitioners contended that
the father, as the natural guardian, and the
biological mother, entitled to custody (hizanat)
under personal law, had the right to the minor's
custody. The corpus was produced in court on
12.03.2024,
and
custody
was
temporarily
granted to the parents. Held: (1) The petition
was disposed of, with the rule nisi made
absolute, allowing the minor to remain with
petitioner no. 2 (father) and his mother. (2) The
detention of the minor by respondent no. 4 was
illegal, as it lacked legal basis under personal
law or statutory provisions. (3) Under Section
352 of the Principles of Mahomedan Law, the
mother is entitled to custody of a male child
until age seven, and the father is the natural
guardian; respondent no. 4 had no legal claim
to custody. (4) In habeas corpus proceedings
for minor custody, the court's primary duty is to
ensure the child's welfare under its parens
patriae jurisdiction, and illegal detention by a
person
without
legal
entitlement
justifies
issuance of the writ, per Sections 12 and 17 of
the Guardians and Wards Act, 1890, read with
personal
law.
(5)
The
court
found
no
justification for respondent no. 4's custody, and
the minor's welfare was best served with his
parents. The demand draft deposited
in
respondent no. 4's name was ordered to be
returned to petitioner no. 2.

List of Cases cited:

## Text

4 All. Master Hiras & Anr. Vs. State of U.P. & Ors.
999

14. Thus in the opinion of the Court,
section 8 of the Act in view of the express
terms of Section 6 and 12 of the Act would
not be applicable where joint Hindu Family
property is sought to be transferred/
disposed off.

15. In view of the above discussion,
the impugned order dated 04.10.2023
passed by the Additional District Judge,
Saharanpur, in Misc. Case No. 276 of 2022
is set aside.The Appeal stands allowed.

16. No order as to costs.
----------
(2024) 4 ILRA 999
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2024

BEFORE

THE HON'BLE Dr. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 949 of 2023

Master Hiras & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Maimoona Fatima, Sri Mohd. Nasir

Counsel for the Respondents:
G.A.

Constitution of India, 1950 - Article 226 -
Guardians and Wards Act, 1890 - Sections
12, 17 - Principles of Mahomedan Law -
Sections 349, 351 & 352 - Habeas Corpus
- Custody of Minor - Illegal Detention -
Natural Guardianship - Welfare of Minor -
The petitioners, Master Hiras (minor corpus,
aged about 2 years, born on 01.01.2022) and
his father (petitioner no. 2), filed a habeas
corpus petition asserting that the minor was
illegally detained by respondent no. 4, the wife
of petitioner no. 2's brother, who had a strained
relationship with her husband. The minor was
taken by respondent no. 4 on 27.11.2022 when
she left the joint family home to reside at her
maternal home. The petitioners contended that
the father, as the natural guardian, and the
biological mother, entitled to custody (hizanat)
under personal law, had the right to the minor's
custody. The corpus was produced in court on
12.03.2024,
and
custody
was
temporarily
granted to the parents. Held: (1) The petition
was disposed of, with the rule nisi made
absolute, allowing the minor to remain with
petitioner no. 2 (father) and his mother. (2) The
detention of the minor by respondent no. 4 was
illegal, as it lacked legal basis under personal
law or statutory provisions. (3) Under Section
352 of the Principles of Mahomedan Law, the
mother is entitled to custody of a male child
until age seven, and the father is the natural
guardian; respondent no. 4 had no legal claim
to custody. (4) In habeas corpus proceedings
for minor custody, the court's primary duty is to
ensure the child's welfare under its parens
patriae jurisdiction, and illegal detention by a
person
without
legal
entitlement
justifies
issuance of the writ, per Sections 12 and 17 of
the Guardians and Wards Act, 1890, read with
personal
law.
(5)
The
court
found
no
justification for respondent no. 4's custody, and
the minor's welfare was best served with his
parents. The demand draft deposited
in
respondent no. 4's name was ordered to be
returned to petitioner no. 2.

List of Cases cited:

1. Master Hiras & Anr. Vs St. of U.P. & ors.,
(2024) 4 ILRA, Habeas Corpus Writ Petition No.
949

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Mohd Nasir, learned
counsel for the petitioners and Ms. Divya
Ojha, learned AGA-I appearing for the
State-respondents.

2. The petition has been filed with the
assertion that the petitioner no. 1 (corpus),
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
who is the minor son of the petitioner no. 2,
born on 01.01.2022, had been illegally
detained by the respondent no. 4 (wife of
the brother of the petitioner no. 2), who is
stated to be having strained relationship
with the husband.

3. Pursuant to the rule nisi issued
earlier, the petitioner no. 1 (corpus) was
produced in Court, on 12.03.2024, by
respondent no. 4.

4. I t was brought to the notice of the
Court that the respondent no. 4 (wife of
brother of the petitioner no. 2), was at an
earlier point of time, living with the joint
family, and on 27.11.2022, the respondent
no. 4 is stated to have left her home taking
the petitioner no. 1 (corpus) with her.

5. It was pointed out that the
respondent no. 4, since then, was staying at
her maternal home, and the petitioner no. 1
(corpus) was being illegally detained by her.

6. It was contended that the petitioner
no. 1 (corpus), being an infant of age about
2 years, the father would be the natural
guardian, and the biological mother would
be entitled to a right of custody (hizanat),
as per the personal law.

7. It was also pointed out that the
mother of the petitioner no. 1 (corpus) and
the respondent no. 4, were 'related to each
other' and that proceedings of criminal
nature as well as a matrimonial case, are
pending, between the respondent no. 4 and
her husband (i.e. the brother of the
petitioner no. 2).

8. Taking into view that the custody
of the petitioner no. 1 (corpus) with the
respondent no. 4, could not prima facie be
supported legally, the petitioner no. 1
(corpus) was permitted to go along with the
petitioner no. 2 (his father) and his mother,
who were present in the Court, on the
previous date.

9. Today, upon the case being taken
up, it was pointed out that the petitioner no.
1 (corpus) has been brought to the Court by
the petitioner no. 2 (his father) and also his
mother.

10. The petitioner No. 2, has been
identified by his counsel, Sri Mohd. Nasir.

11. Learned AGA-I, on the basis of an
enquiry made from the petitioner no. 2 and
his wife (parents of the petitioner-corpus),
in Court, submits that they have stated that
the petitioner no. 1 (corpus) is under their
guardianship and custody, and is being
taken care of.

12. A writ of habeas corpus is
prerogative process for securing the liberty
of the subject by affording effective means
of immediate release from an illegal or
improper detention. The writ also extends
its influence to restore the custody of a
minor to his guardian when wrongfully
deprived of it. The detention of a minor by
a person who is not entitled to his legal
custody would have to be treated as
equivalent to illegal detention for the
purpose of granting a writ directing custody
of the minor child.

13. The law relating to guardians and
wards is governed in terms of the Guardians
and Wards Act, 18901, and an order with
regard to guardianship may be passed under
the aforesaid enactment, upon an application
filed by a person claiming entitlement.

14. The provision with regard to
making of an application regarding claims
4 All. Master Hiras & Anr. Vs. State of U.P. & Ors.
1001
based on entitlement of guardianship is
under the GWA and under Section 12
thereof the court is empowered to make
interlocutory orders for protection of a
minor including an order for temporary
custody and protection of the person or
property of the minor.

15. Section 17 of the GWA relates to
matters to be considered by the court in
appointing a guardian, and in terms thereof
it is provided that the court while deciding
the question of guardianship of a minor,
shall, as far as possible, do so consistently
with the law to which the minor is subject,
keeping in view the welfare of a minor.
Thus, the provisions of the personal law are
to be applied consistently with the
provisions of the GWA, and insofar as the
question of custody is concerned, the rights
of parties in the present case, are to be
governed by the personal law.

16.

The
matters
relating
to
"Guardianship of Person and Property" are
provided under Chapter XVIII of Principles
of Mahomedan Law2 and Part-A thereof
pertains to "Appointment of Guardians". In
terms of Section 349, all applications for
the appointment of a guardian of the person
or property or both of a minor, are to be
made under the GWA.

17 . Further, Section 351 of Principles
of Mahomedan Law, which is in terms of
Section 17 of the GWA, imposes a duty
upon the court in appointing guardian to
make the appointment consistently with the
law to which the minor is subject, keeping
in view the welfare of the minor.

18. The subject matter relating to
"Guardianship of a Person of a Minor" is
dealt with under Part-B of Chapter XVIII
of Principles of Mahomedan Law, and
Sections 352 thereof, which relates to the
right of mother to custody of infant
children, is set out hereinbelow:-

"352. Right of mother to custody
of infant children.-The mother is entitled
to the custody (hizanat) of her male child
until he has completed the age of seven
years and of her female child until she has
attained puberty. The right continues
though she is divorced by the father of the
child (e), unless she marries a second
husband in which case the custody belongs
to the father (f)."

19. It would be seen that in terms of
Section 352, abovementioned, the mother is
entitled to custody (hizanat) of her male
child until he has completed the age of
seven years.

20. In a petition seeking issuance of a
writ of habeas corpus relating to the
custody of a minor child, the principle duty
of the Court would be to ascertain whether
the custody of the child is unlawful or
illegal and whether the welfare of the child
requires that the present custody should be
changed and the child be handed over to
the care and custody of some other person.
In doing so, the paramount consideration
would undoubtedly be the welfare of the
child and the role of the High Court in
examining such cases would have to be on
the touchstone of principles of parens
patriae jurisdiction.

21. Habeas corpus proceedings would
not ordinarily lie to justify or examine the
legality of the custody of the minor child,
and the question in this regard would have
to be addressed by the Court in exercise of
its
discretionary
jurisdiction.
The
prerogative writ of habeas corpus, is in the
nature of an extraordinary remedy, and is to
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
be issued taking into consideration, the
circumstances of a particular case.

22. In child custody matters, the
remedy
ordinarily
lies
under
the
statutory law, or the personal law, as
applicable in the facts of the case;
however, in cases which justify the
exercise
of
the
extraordinary
discretionary jurisdiction under Article
226, a writ of habeas corpus would be
issued where it is demonstrated that the
detention of minor child, is illegal or
without any authority of law.

23. In the facts of the present case, the
petitioner no. 1 (corpus), who is the minor
son of the petitioner no. 2, born on
01.01.2022 was being detained by the
respondent no. 4 (wife of the brother of the
petitioner no. 2), who is stated to be having
a strained relationship with her husband.
The petitioner no. 1 (corpus), being an
infant of aged about two years, the
petitioner no. 2 (his father), would be the
natural guardian, and the biological mother
of the petitioner-corpus would be entitled
to a right of custody (hizanat) as per the
personal law.

24. Looking to the entirety of the
facts, which are before the Court, the
detention of the petitioner no. 1 (corpus),
by the respondent no. 4, cannot, in any
manner, be legally supported.

25. Having regard to the aforesaid, the
rule issued earlier is made absolute.

26. The petition stands disposed of.

27. The petitioner No. 1 (corpus) is
permitted to be taken back by the petitioner
No. 2 (his father), to the place from where
he has been brought.

28. The demand draft stated to have
deposited in the name of respondent no. 4,
be returned in original to the petitioner no.
2, upon an application to be made before
the Registrar General, in this regard.
----------
(2024) 4 ILRA 1002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ Tax No. 11 of 2023

Smt. Meera Pandey ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhinav Trivedi, Sri Mudit Agarwal

Counsel for the Respondents:
A.S.G.I., Dr. Ravi Kumar Mishra, Kushagra
Dikshit, Sri Manish Misra, Sri Neerav Chitavanshi

Civil Law - Prohibition of Benami Property
Transactions Act, 1988 - Sections 2(8),
2(9), 2(10), 2(12), 24(1) & 24(3) -
Constitution of India, 1950- Article 226- -
Petitioner challenged show cause notice and
provisional attachment order dated 05.01.2023,
alleging constructions on Plot No. 35, Srijan
Vihar Colony, Gomti Nagar, Lucknow, as benami
transactions for her son-in-law. Court held: (1)
No proceedings could be initiated for the plot
purchased before the 2016 amendment to the
Act, as per U.O.I. Vs Ganpati Dealcom Ltd.,
(2023) 3 SCC 315, which declared retrospective
application unconstitutional. (2) Show cause
notice under Section 24(1) lacked sufficient
material to establish "reason to believe"
petitioner was a benamidar, relying solely on
contractor's
St.ment
without
supporting
evidence (Indra Prastha Chemicals (P) Ltd. Vs
CIT,
(2005)
UPTC
53).
(3)
Provisional
attachment order under Section 24(3) invalid
due to absence of material indicating likelihood