# Master Manan @ Arush v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-19
- **Case number:** Habeas Corpus Writ Petition No. 1026 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-manan-arush-v-state-of-u-p-ors-46879
- **Pages:** 5

## Headnote

A.G.A., Sri Abhay Nitin Singh, Sri Shailesh
Kumar Yadav

(A) Writ of Habeas Corpus - prerogative
writ
of
habeas
corpus-extraordinary
remedy-writ is issued, where in the
circumstances of a particular case, the
ordinary remedy provided under law is
either not available or is ineffective -
power of the High Court, in granting a
writ, in child custody matters - may be
invoked only in cases where the detention
of a minor is by a person who is not
entitled to his/her legal custody - where
facts are disputed and a detailed inquiry is
required - court may decline to exercise
its extraordinary jurisdiction and may
direct
the
parties
to
approach
the
appropriate court . (Para - 14,15)

Mother of the corpus living separately from her
husband (respondent no. 6) - corpus (minor
child) about seven and a half year of age taken
away by the respondent no. 6 (father) -
existence of a dispute with regard to the
handing over the custody of the child to the
mother, pursuant to some agreement between
the parties, the terms of which, are now being
disputed. (Para - 3, 16)

HELD: - Mother's claim for custody and
visitation rights, are matters which are to be
agitated
in
appropriate
proceedings
/
appropriate forum. This Court is not inclined to
exercise its extraordinary jurisdiction in the
matter. (Para - 19,21)
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus Petition dismissed. (E-6)

List of Cases cited: -

## Text

3 All. Master Manan @ Arush Vs. State of U.P. & Ors.
375
that the father may be permitted to meet
both, Shiva and Suraj, once every fortnight
between 10:00 a.m. to 2:00 p.m. Devendra
can meet the minors either on alternate
Sundays or any other week day, suitable to
him, going by the contingencies of his
engagement, which he may intimate to
Pushpa Devi @ Mahi. The visitation, as
aforesaid, shall be adjusted by the parties
by mutual consent about the day of
visitation, but with the restriction that there
have to be two visitations every month.
This arrangement would continue till Shiva
and Suraj attain the age of majority.

32. This habeas corpus writ petition
succeeds and is allowed. The rule nisi
dated 19.10.2020 is made absolute in the
terms that the custody of two minors, Shiva
and Suraj, shall be entrusted by Devendra
to Smt. Pushpa Devi @ Mahi within a
week of delivery of this judgment at
Pushpa's home, located in Village and Post
Bhurwa Sumerpur, District of Hamirpur. In
the event of default, the Chief Judicial
Magistrates, Hamirpur and Shahjahanpur,
in coordination amongst themselves and the
Superintendent of Police, Shahjahanpur
shall cause the custody of the two minors,
Shiva and Suraj, sons of Devendra Kumar,
to be delivered to their mother, Smt.
Pushpa Devi @ Mahi at her home in the
district of Hamirpur.

33. Let this order be communicated to
the learned Chief Judicial Magistrate,
Hamirpur, the learned Chief Judicial
Magistrate,
Shahjahanpur
and
the
Superintendent of Police, Shahjahanpur, by
the Joint Registrar (Compliance).
----------
(2021)03ILR A375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 1026 of 2019

Master Manan @ Arush ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhishm Pal Singh

Counsel for the Respondents:
A.G.A., Sri Abhay Nitin Singh, Sri Shailesh
Kumar Yadav

(A) Writ of Habeas Corpus - prerogative
writ
of
habeas
corpus-extraordinary
remedy-writ is issued, where in the
circumstances of a particular case, the
ordinary remedy provided under law is
either not available or is ineffective -
power of the High Court, in granting a
writ, in child custody matters - may be
invoked only in cases where the detention
of a minor is by a person who is not
entitled to his/her legal custody - where
facts are disputed and a detailed inquiry is
required - court may decline to exercise
its extraordinary jurisdiction and may
direct
the
parties
to
approach
the
appropriate court . (Para - 14,15)

Mother of the corpus living separately from her
husband (respondent no. 6) - corpus (minor
child) about seven and a half year of age taken
away by the respondent no. 6 (father) -
existence of a dispute with regard to the
handing over the custody of the child to the
mother, pursuant to some agreement between
the parties, the terms of which, are now being
disputed. (Para - 3, 16)

HELD: - Mother's claim for custody and
visitation rights, are matters which are to be
agitated
in
appropriate
proceedings
/
appropriate forum. This Court is not inclined to
exercise its extraordinary jurisdiction in the
matter. (Para - 19,21)
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus Petition dismissed. (E-6)

List of Cases cited: -

1. Mohammad Ikram Hussain Vs St. of U.P. &
ors. AIR 1964 SC 1625

2. Kanu Sanyal Vs D.M., Darjeeling (1973) 2
SCC 674

3. Nithya Anand Raghvan Vs St. (NCT of Delhi)
& 3 anr. (2017) 8 SCC 454

4. Sayed Saleemuddin Vs Dr. Rukhsana & 4 ors.
(2001) 5 SCC 247

5. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & 5 ors. (2019) 7 SCC 42

6. Rachhit Pandey (Minor) & anr. Vs St. of U.P.
& 3 ors. 2021 (2) ADJ 320

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

1. Heard Sri Bhishm Pal Singh,
learned counsel for the petitioner, Sri
Abhay Nitin Singh, learned counsel for the
respondent nos. 6 to 9 and Sri Vinod Kant,
learned
Additional
Advocate
General,
alongwith Sri Pankaj Saxena, learned
A.G.A.-I for the State respondents.

2. Pursuant to the directions issued
earlier, the corpus (minor child) of age
about seven and a half years, has been
brought in Court by the respondent no. 6,
who is stated to be his father, and has been
identified by the counsel for the said
respondent.

3. The basic facts which are
undisputed are that the mother of the
corpus is living separately from her
husband (respondent no. 6) since the year,
2017. It has been pointed out that on
22.8.2019 the corpus (minor child) was
taken away by the respondent no. 6 (father)
to Ajmer, and that he is living with his
father since then under his care and
custody. A mutual agreement on a notarial
affidavit is stated to have been entered into
between the parents of the minor child on
02.09.2019.
Amongst
the
various
conditions
which
were
agreed
upon
between the parties, one was with regard to
the minor child having been handed over to
the mother with a further stipulation that he
would remain with the mother, subject to
certain conditions.

4. The present petition, which has
been filed through the mother of the minor
child, contending that the custody of the
minor has not been handed over to her and
that the minor is being illegally detained by
the respondent no. 6 (father of the minor
child) and the other respondents i.e.
respondent nos. 7, 8 and 9.

5. From the submissions made by the
counsel for the parties, it appears that there
is a serious dispute with regard to the terms
and conditions of the agreement, which is
stated to have been entered into between
the husband and the wife, with both the
parties alleging that the other has not
abided by the terms thereof.

6. The dispute between the parties,
which is sought to be agitated by means of
the
present
petition,
essentially
is,
regarding the custody of the minor child,
who is presently about seven and a half
years of age (date of birth-09.08.2013).

7. In a petition seeking a writ of
habeas corpus in a matter relating to a
claim for custody of a child, the principal
issue
which
is
to
be
taken
into
consideration is as to whether from the
facts of the case, it can be stated that the
custody of the child is illegal.
3 All. Master Manan @ Arush Vs. State of U.P. & Ors.
377

8. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is writ of right and not a writ of
course and may be granted only on
reasonable ground or probable cause being
shown, as held in Mohammad Ikram
Hussain vs. State of U.P. and others1 and
Kanu Sanyal vs. District Magistrate
Darjeeling2.

9. The exercise of the extraordinary
jurisdiction for issuance of a writ of
habeas corpus would, therefore, be seen
to be dependent on the jurisdictional fact
where the applicant establishes a prima
facie case that the detention is unlawful.
It is only where the aforementioned
jurisdictional fact is established that the
applicant becomes entitled to the writ as
of right.

10. The object and scope of a writ of
habeas corpus in the context of a claim
relating to custody of a minor child fell
for consideration in Nithya Anand
Raghvan v State (NCT of Delhi) and
another3, and it was held that the
principal duty of the court in such matters
is to ascertain whether the custody of the
child is unlawful and illegal and whether
the welfare of the child requires that his
present custody should be changed and
the child be handed over to the care and
custody of any other person.

11. Taking a similar view in the
case of Sayed Saleemuddin vs. Dr.
Rukhsana and others4, it was held that
in a habeas corpus petition seeking
transfer of custody of a child from one
parent
to
the
other,
the
principal
consideration for the court would be to
ascertain whether the custody of the child
can be said to be unlawful or illegal and
whether the welfare of the child requires
that the present custody should be
changed. It was stated thus:-

"11. ...it is clear that in an
application seeking a writ of Habeas
Corpus for custody of minor children the
principal consideration for the Court is to
ascertain whether the custody of the
children can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in care and custody of somebody
else. The principle is well settled that in a
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court..."

12. The question of maintainability of
a habeas corpus petition under Article 226
of the Constitution of India for custody of a
minor was examined in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad
Tewari and others5, and it was held that
the petition would be maintainable where
detention by parents or others is found to
be illegal and without any authority of law
and
the
extraordinary
remedy
of
a
prerogative writ of habeas corpus can be
availed in exceptional cases where ordinary
remedy provided by the law is either
unavailable or ineffective. The observations
made in the judgment in this regard are as
follows:-

"14. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an 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 is treated as equivalent to illegal
378 INDIAN LAW REPORTS ALLAHABAD SERIES
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

x x x

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 of
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."

13. It is, therefore, seen that in an
application seeking a writ of habeas corpus
for custody of a minor child, as is the case
herein, the principal consideration for the
court would be to ascertain whether the
custody of the child can be said to be
unlawful and illegal and whether the
welfare of the child requires that the
present custody should be changed and the
child should be handed over in the care and
custody of somebody else other than in
whose custody the child presently is.

14. Proceedings in the nature of
habeas corpus may not be used to examine
the question of the custody of a child. The
prerogative writ of habeas corpus, is in the
nature of extraordinary remedy, and the
writ is issued, where in the circumstances
of a particular case, the ordinary remedy
provided under law is either not available
or is ineffective. The power of the High
Court, in granting a writ, in child custody
matters, may be invoked only in cases
where the detention of a minor is by a
person who is not entitled to his/her legal
custody.

15. In a case where facts are disputed
and a detailed inquiry is required, the court
may decline to exercise its extraordinary
jurisdiction and may direct the parties to
3 All. Gyanmati Kushwaha & Anr. Vs. State of U.P. & Ors.
379
approach
the
appropriate
court.
The
aforementioned legal position has been
considered in a recent judgement of this
Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6.

16. In the present case, it is
undisputed that the child is with his father
since 22.8.2019 under his care and custody.
It is not the case of either party that the
child was forcibly taken away by the father
from the custody of the mother. The
pleadings and the material on record
indicates the existence of a dispute with
regard to the handing over the custody of
the child to the mother, pursuant to some
agreement between the parties, the terms of
which, are now being disputed.

17. It has been pointed out that the
date of birth of the child is 09.08.2013, and
accordingly, the child being more than 5
years of age, the custody of the child with
the father, in view of the provisions under
Section 6(a) of The Hindu Minority and
Guardianship Act, 1956, cannot be said to
be prima facie illegal.

18. A writ of habeas corpus, as has
been consistently held, though a writ of
right is not to be issued as a matter of
course, particularly when the writ is sought
against a parent for the custody of a child.

19. The contention which has been
sought to be raised by the counsel for the
petitioner with regard to the mother's claim
for custody and visitation rights, are
matters which are to be agitated in
appropriate proceedings.

20. It is made clear that the
observations made, herein above, are prima
facie in nature and the same are without
prejudice to the rights and contentions of
the parties, which may be agitated in
proceedings before the appropriate forum.

21. Having regard to the aforestated
facts, this Court is not inclined to exercise
its extraordinary jurisdiction in the matter.

22. The petition thus fails and is
accordingly, dismissed.
----------
(2021)03ILR A379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 1217 of 2019

Gyanmati Kushwaha & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Azad Khan, Sri Mohini Jaiswal

Counsel for the Respondents:
A.G.A., Sri Ali Hasan, Sri Fakhruzzaman, Sri
Om Prakash, Sri Fakhra Uz Jama

(A) Civil Law - The Hindu Minority and
Guardianship Act, 19562 - Section 6(a) -
Writ of Habeas Corpus - Custody of minor
daughter - Code of criminal procedure,
1973 - Section 97 - Search for persons
wrongfully confined - Natural guardians of
a Hindu minor - 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 - The guardians and wards Act,
1890 - Section 17 - matters to be
considered by the court in appointing
guardian - Section 17(2) - If the minor is
old
enough
to
form
an
intelligent
preference, the court may consider that
preference .(Para - 5,8,14)