# Master Namish Gupta @ Guddu Gupta & Anr v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Habeas Corpus Writ Petition No. 229 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-namish-gupta-guddu-gupta-anr-v-state-of-u-p-ors-50537
- **Pages:** 7

## Headnote

Law
-
Hindu
Minority
and
Guardianship Act, 1956 - Constitution of
India,1950 -Art. 226 - Habeas corpus -
Custody of minor child aged about 21⁄2
years - Father, being natural guardian,
sought
custody
from
maternal
grandparents - Petition allowed - Father
found fit to take care of the child
emotionally and financially - Maternal
grandparents
failed
to
demonstrate
superior welfare arrangements - Held:
custody with grandparents amounts to
illegal detention - Writ of habeas corpus
maintainable - Custody handed over to
father in interest of minor's welfare.

Held:
Custody of minor child shall be restored to the
petitioner - father being natural guardian under
Section 6(a) of the Hindu Minority and
Guardianship
Act.
Grandparents'
custody
amounts to illegal detention. Visiting rights
granted to respondents 3 to 5 in the interest of
the child.

Case law discussed:

## Text

1350 INDIAN LAW REPORTS ALLAHABAD SERIES
pleaded
in
the
election
petition
challeneging the election on the ground of
improper acceptance of the nomination
paper of respondent no.1 disclosing a cause
of action and a triable issue under Section
100 (1)(d)(i) of the R.P. Act, 1951 that the
election of respondent no.1 is vitiated by
impoper acceptance of nomination form.
Hence, there is compliance with Section
83(1)(a) & (b) of the R.P. Act, 1951,
therefore,
both
the
applications,
i.e.,
Application No.6 of 2022 (under Order 7
Rule 11 of C.P.C.) & Application No.7 of
2022,
(under
Section
86(1)
of
the
Representation of Peoples' Act, 1951) are
dismissed without any order as to cost.
----------
(2023) 8 ILRA 1350
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 229 of 2022

Master Namish Gupta @ Guddu Gupta &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satendra Kumar (Singh), Sri Abhishek
Misra

Counsel for the Respondents:
G.A., Sri Pramod Kumar Singh

Civil
Law
-
Hindu
Minority
and
Guardianship Act, 1956 - Constitution of
India,1950 -Art. 226 - Habeas corpus -
Custody of minor child aged about 21⁄2
years - Father, being natural guardian,
sought
custody
from
maternal
grandparents - Petition allowed - Father
found fit to take care of the child
emotionally and financially - Maternal
grandparents
failed
to
demonstrate
superior welfare arrangements - Held:
custody with grandparents amounts to
illegal detention - Writ of habeas corpus
maintainable - Custody handed over to
father in interest of minor's welfare.

Held:
Custody of minor child shall be restored to the
petitioner - father being natural guardian under
Section 6(a) of the Hindu Minority and
Guardianship
Act.
Grandparents'
custody
amounts to illegal detention. Visiting rights
granted to respondents 3 to 5 in the interest of
the child.

Case law discussed:

1. Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari (2019) 7 SCC 42;

2. Vinayak Tripathi Vs St. of U.P., Habeas
Corpus W.P. No. 2583 of 2017;

3. Smt. Manju Malini Vs Vijay Thirugnanam,
W.P.H.C. No.13/2018 (Karnataka HC) - Relied
on.

4. Reshu @ Nitya Vs St. of U.P. 2021 (6) ALJ
632 - Distinguished.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition seeks issuance of a
writ in the nature of Habeas Corpus
commanding the opposite parties 3, 4 and
5, to produce the detenu Master Namish
Gupta alias guddu Gupta in Court and
provide his custody to his father Nitesh
Gupta, the petitioner.

2. Heard Mr. Satendra Kumar
(Singh), learned counsel for the petitioner,
Mr. Alok Tiwari, learned Additional
Government Advocate as well as Mr.
Pramod Kumar Singh, learned counsel for
private respondents 3 to 5.
8 All. Master Namish Gupta @ Guddu Gupta & Anr. Vs. State of U.P. & Ors.
1351

3. Brief facts of the case are that the
detenu Namish Gupta alias Guddu Gupta
was aged about 1 1/2 years at the time of
filing of this petition and presently, he is
about 2 1/2 years. The deponent Nitesh
Gupta is his father and natural guardian.
The deponent was married to late Priyanka
Gupta, daughter of respondents 3 and 4 and
sister of respondent No.5 on 22.4.2014
according to Hindu rites and rituals. It is
pleaded that the petitioner is running an
industry at Kolkata. Out of their wedlock,
initially, a girl, namely Kanika Gupta was
born on 7.9.2015 who is presently residing
with the deponent. The late Priyanka Gupta
again conceived in the year 2020. At that
time, the parents of late Priyanka Gupta
requested to send her to Lucknow so that
she may reside with her mother who can
take care of her during pregnancy and
delivery.

4. Learned counsel for the petitioner
submits that the petitioner has taken care of
the deceased mother of the detenu as well
as the detenu and extended financial help to
private respondents. Photocopy of bank
statement through which the money was
credited into the account of private
respondents has been filed as Annexure
No.1 to the petition. It is submitted that the
petitioner has successfully raised her elder
daughter Kanika Gupta who is studying in
Kolkata at G.D. Goenka School. He further
submits that the petitioner has taken health
insurance of a sum of Rs.5 lacs in the name
of himself and his two children, i.e. baby
Kanika Gupta and Master Namish Gupta.
He has also opened a Sukanya Samriddhi
Account to secure future financial needs of
Kanika Gupta and used to deposit for future
financial
needs.
Copy
of
Sukanya
Samriddhi Account of Baby Kanika Gupta
has been filed as Anenxure No.4 to the
petition. He has also purchased an
insurance policy in the name of baby
Kanika Gupta. It is submitted that since the
deponent has been taking care of the
financial needs of the detenu as also private
respondents, the respondents are using the
detenu as an instrument to extract money
and they do not want to hand over the
custody of the child to the deponent.

Though sufficient amount was
handed over to private respondents for
treatment of late wife of the deponent, the
private respondents instead of consulting an
expert Gynecologist consulted a doctor
having B.H.M.S. (Homeopathic) degree
and all the time the deponent was told that
Priyanka Gupta was under observation of
an expert of Gynecologist. On 14.12.2020,
late Priyaka Gupta gave birth to the detenu
in Deep Hospital, Hardoi Road, Lucknow.
Copy of birth certificate is on record and
has been filed as Annexure-2. It is
submitted that due to septic shock, the
medical condition of late Priyanka Gupta
deteriorated and as such she was referred to
K.G.M.U, Lucknow on 19.12.2020 where
she died on the same day.

It is submitted that the private
respondents are denying even the visiting
rights and also the custody of the detenu to
the deponent. In June, 2021, when the
petitioner went to take custody of the
detenu, private respondents called police.
This fact is not disputed by learned counsel
for private respondents. He submits that the
deponent being father and natural guardian
under Hindu Minority and Guardianship
Act deserves to take custody of the minor
detenu considering his overall welfare. It is
further submitted that the financial position
of private respondents is not such that they
can provide and meet educational and
medical expenses etc to the detenu.
Depriving the detenu of the custody of the
deponent will be depriving him from the
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
emotional love and affection from his
natural guardian as well as it shall also
deprive the detenu of the same love and
affection from his elder sister who is
residing with the deponent. In case the
custody of the detenu is provided to the
deponent, he shall have company of his
natural guardian, i.e. father and the
company of his sister.

It is submitted that the deponent
lives at Kolkata in a joint family where he
lives along with his father, uncle, aunt and
his daughter, thus, it is submitted that there
are enough family members to take care of
the detenu. In support of his contention,
learned counsel has relied on judgment of
Supreme Court in Tejaswini Gaud and
others versus Shekhar Jagdish Prasad
Tewari and others (2019)7 SCC 42,
judgment dated 30.9.2022 in Vinayak
Tripathi and another versus State of U.P.
and others passed by a coordinate Bench
of this Court in Habeas Corpus Writ
Petition No.2583 of 2017 and judgment
dated 19.4.2018 of Karnataka High Court
in Smt. Manju Malini Seshachalam
versus Vijay Thirugnanam and others
passed in W.P. H.C. No.13 of 2018.

5. Per contra, Mr. Alok Tiwari,
learned A.G.A. and learned counsel for
private respondents have opposed the
petition. Learned A.G.A. has submitted that
since the detenu is residing with his
maternal grand parents since birth and
therefore, depriving him of the custody of
the maternal grand parents may not be in
overall welfare of the detenu as he may
have been emotionally attached with the
grand parents and the age of the detenu is
not such that he may make any judgment
regarding his choice as to with whom he
wants to stay. In support of his contention,
Mr. Tiwari has relied on judgment of a
coordinate Bench of this court in Reshu
alias Nitya and others vs. State of U.P.
and others 2021(6) ALJ 632.

6. Learned counsel for private
respondents
submits
that
though
the
deponent is a natural guardian but they are
having the custody of the detenu since birth
and they want to keep on having the
custody of the detenu, which will be in the
interest of the detenue itself.

As regards the amount received
by them from the deponent, it has been
submitted by learned counsel that the same
was given for purchase of some articles.
Attention of the court has also been invited
to some bills and vouchers which have
been filed along with supplementary
counter affidavit. It is submitted that
financial condition of private respondents is
good enough to give a good education and
upbringing to the detenu.

7. The petitioner's counsel while
rebutting the submission raised by learned
counsel for private respondents submits
that
private
respondents
have
not
approached the court with clean hands. It is
submitted that in paras 22, 23 and 24 of the
petition, a categorical pleading has been
made that the deceased mother of the
detenu was consulted by a Homeopathic
doctor having B.H.M.S. degree, and not by
an expert Gynecologist. He has relied on
birth certificate issued by Deep Hospital
dated 14.12.2020.

While filing counter affidavit, no
reply has been given to the contents of para
24 of the writ petition which states about
birth certificate of the detenu. However,
while
filing
supplementary
counter
affidavit, the private respondents have filed
one more birth certificate bearing the name
8 All. Master Namish Gupta @ Guddu Gupta & Anr. Vs. State of U.P. & Ors.
1353
of the same hospital with same serial
number, but this time name of the doctor
has been changed and an impression is
sought to be given to the court that the
deceased mother of the detenu was treated
by a Gynecologist.

It is submitted that not only this,
while filing counter affidavit, a different
story regarding the money received from
the deponent was given by private
respondents.
However,
while
filing
supplementary counter affidavit, story has
been changed and few bills have been
annexed along with supplementary counter
affidavit as Annexure No.SCA-4 to show
unsuccessfully
that
the
money
was
transferred by the deponent to purchase
some consumable product of FLP Trading
Private Limited for themselves. He has also
invited attention of this court to page 65,
i.e. SCA-5 where some customer invoice
has been filed. At page 65 and 66, the
consignee name is shown as Priyanka
Gupta, mother of the detenu. Page 66 is the
photocopy of page 65 and from page 67
onwards, the alleged customer invoices are
in no way connected with the deponent or
the deceased mother of the detenu as the
details of the consignee to whom the
products are being shipped have not been
given. It is submitted that by filing two
affidavits which are in contradiction, the
private respondents have tried to mislead
the court.

8. This Court has noticed that the date
of birth certificate issued by Deep Hospital
and annexed as Annexure 2 to the writ
petition bears serial No.742 and the name
of the doctor is Kamla Prasad. It is noticed
that no reply to para 24 of the petition has
been given wile filing counter affidavit.
However,
while
filing
supplementary
counter affidavit, another birth certificate
has been filed which also bears the same
serial No.742, however, name of the doctor
has been changed as Dr. Nihan Iqbal. No
satisfactory reply could be given by learned
counsel for private respondents as to why
no reply was given in the counter affidavit
filed by them. However, this court is
conscious of the fact that this is a habeas
corpus petition seeking custody of the
detenu filed by his father in his overall
interest.

9. In Tejaswini Gaud's case (supra),
the Supreme Court held that 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 and
thus, in that case while affirming the
judgment of the High Court dated 6.2.2019
in Shekhar Jagdish Prasad Tewari versus
State of Maharashtra 2019 SCC OnLine
Bom 214, the appellant was directed to
hand over the custody of the child to the
first
respondent
father
with
certain
directions
and
observations.
Relevant
paragraphs of Tejaswini Gaud's case is
reproduced herebelow :

"13.Countering this contention,
the learned counsel for respondent No.1
submitted that in the given facts of the case,
the High Court has the extraordinary
power to exercise the jurisdiction under
Article 226 of the Constitution of India and
the High Court was right in allowing the
habeas
corpus petition.
The
learned
counsel has placed reliance on Gohar
Begum and. Manju Malini Sheshachalam.
Contention of respondent No.1 is that as
per Section 6 of the Hindu Minority and
Guardianship Act, respondent No.1, being
the father, is the natural guardian and the
appellants have no authority to retain the
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
custody of the child and the refusal to hand
over the custody amounts to illegal
detention of the child and therefore, the
writ of habeas corpus was the proper
remedy available to him to seek redressal.

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
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.

32. In the case at hand, the father
is the only natural guardian alive and has
neither abandoned nor neglected the child.
Only due to the peculiar circumstances of
the case, the child was taken care of by the
appellants. Therefore, the cases cited by
the appellants are distinguishable on facts
and cannot be applied to deny the custody
of the child to the father.

34. As observed in Rosy Jacob
earlier, the father's fitness has to be
considered,
determined
and
weighed
predominantly in terms of the welfare of his
minor children in the context of all the
relevant circumstances. The welfare of the
child shall include various factors like
ethical upbringing, economic well-being of
the guardian, child's ordinary comfort,
contentment, health, education etc. The
child Shikha lost her mother when she was
just fourteen months and is now being
deprived from the love of her father for no
valid reason. As pointed out by the High
Court, the father is a highly educated
person and is working in a reputed
position. His economic condition is stable."

10. In the case of Vinayak Tripathi
(supra), this Court in para 43 noted that the
petitioner being a natural guardian and
having family assistance, can look after the
nurturing of the child in better way as
compared to the grand maternal parents
who are considerably old age persons.
Relevant paras 43 and 47 are extracted
below :

"43. This Court has also noticed
that the grand maternal parents i.e.
respondent nos.3 and 4 are of considerable
old age persons and it would be very hard
for them to take care of a minor child,
whereas petitioner no.2 being a natural
guardian and having family assistance, can
look after the nurturing of the child in
better way.

47. It is decipherable from
perusal of the record appended with the
writ
petition
that
the
conduct
and
behaviour of the respondent nos. 3 and 4,
so far as access of the child to his father is
concerned, prima facie seems to be
unexpected. It is not understandable that
why the grand maternal parents are so
adamant, not to give the custody of the
child to his father as he does not seem to be
unfit to be guardian, thus this is a best
example of improper custody. "

11. In Smt. Manju Malini's case
(supra), the detenue was detained by
younger sister of the petitioner along with
husband who refused to hand over custody
of the minor to the petitioner who was a
8 All. Master Namish Gupta @ Guddu Gupta & Anr. Vs. State of U.P. & Ors.
1355
natural guardian. Relevant para 24 is
extracted below :

"24. The moment respondents 1
and 2 refused to handover the custody of
minor Tanishka to the petitioner the
natural
and
legal
guardian,
the
continuation of her custody with them
becomes illegal detention. Such intentional
act on the part of respondent Nos.1 and 2
even amounts to the offence of kidnapping
punishable under S.361 of IPC. Therefore
there is no merit in the contention that the
writ petition is not maintainable and
respondent Nos.1 and 2 are in legal
custody of baby Tanishka."

12. As regards judgment cited by
learned A.G.A. in Reshu's case (supra), this
Court held that in deciding the question
regarding custody of the minor child,
paramount consideration should be the
welfare of the minor and such a question
cannot be decided merely based on the
competing rights of the parties under law.
In that case also, the child since her infancy
was living with her maternal grand father.
Custody of the child was denied to the
father for the reason that the father was
charged as an accused for alleged murder
of wife, mother of the detenue under
sections 498-A, 304-B I.P.C. and sections
3/4 Dowry Prohibition Act, 1961 and
therefore, in those peculiar facts, custody of
the minor was refused by the court to the
father.

The judgment in the case of
Reshu (supra) is distinguishable on facts
and cannot be applied to deny the custody
of the child to the father in the instant case.
In the case in hand, it is not disputed that
the deponent is the father and natural
guardian of the detenu. It is also not
disputed that he is running an industry in
Kolkata. The facts that in order to secure
appropriate medical health, the petitioner
has taken a health insurance in the name of
the detenu and his daughter, investment
made in Sukanya Samriddhi Account as
well as insurance policy purchased in the
name of Kanika Guta are not disputed. It is
also not disputed that under section 6 of
Hindu Minority and Guardianship Act,
particularly section 6-A thereof, natural
guardian in case of a male child, is father.

Further, the private respondents
could not demonstrate that they have
sufficient financial resources to provide
proper education and upbringing to the
detenu, as is being provided to his elder
sister at Kolkata.

This court further cannot lose
sight of the fact that in the first counter
affidavit filed by private respondents, they
have admitted the birth certificate issued by
the Deep Hospital which shows that the
deceased mother of the detenu was treated
by a B.H.M.S. doctor and not by a
Gynecologist, and subsequent affidavit
filed with contradictory version along with
a different birth certificate with same serial
number will not help private respondents to
demonstrate that they have taken adequate
care of the deceased. The detenu here is
only 2 1/2 years old and obviously is not in
a position to make any judgment.

13. The submission of private
respondents' counsel that handing over
custody
of
the
detenu
to
the
petitioner/deponent would adversely affect
his upbringing and further would affect him
emotionally has no merit as Supreme Court
in the case of Tejaswini Gaud (supra) while
dealing with identical issue, in para 36,
held that if the custody is not granted to the
father, the court would be depriving both
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
the child and the father of each other's love
and affection to which they are entitled and
with the passage of time, the child may
develop more bonding with the father and
if the custody is denied, then later on, the
child may be reluctant to go to his/her
father, in which case, the father will be
completely deprived of the child's love and
affection. Relevant para 36 of Tejaswini
Gaud's case is extracted here-below :

"36.The appellants submit that
handing over of the child to the first
respondent would adversely affect her and
that the custody can be handed over after a
few years. The child is only 1 years old and
the child was with the father for about four
months after her birth. If no custody is
granted to the first respondent, the court
would be depriving both the child and the
father of each other?s love and affection to
which they are entitled. As the child is in
tender age i.e. 1 years, her choice
cannot be ascertained at this stage. With
the passage of time, she might develop
more bonding with the appellants and
after some time, she may be reluctant to
go to her father in which case, the first
respondent might be completely deprived
of her child?s love and affection.
Keeping in view the welfare of the child
and the right of the father to have her
custody and after consideration of all
the facts and circumstances of the case,
we find that the High Court was right in
holding that the welfare of the child will
be best served by handing over the
custody of
the child
to the
first
respondent."

14. In the present case, presently the
detenu is 2 1/2 years old and his choice also
cannot be ascertained at this stage. It is not
disputed that baby Kanika Gupta is residing
with the deponent who is nicely taking her
care. In case the custody of the detenu is
denied to the deponent, the court will be
depriving both the father and the elder
sister the company of the detenu and vice
versa. Therefore, in peculiar facts of this
case, the reasoning given in para 36 of
Tejaswini Gaud's case (supra) applies in
this case also.

15. Hence, in view of the law settled
by the Supreme Court and keeping in view
the overall welfare and upbringing of the
child, the petition is allowed. Respondents
3 to 5 are directed to hand over custody of
the child to the deponent forthwith.

At this stage, learned counsel for
respondents 3, 4 and 5 submits that they
may be permitted to visit the detenu, to
which, learned counsel for the petitioner
has no objection.

16. Keeping in view the interest of the
child as also the undertaking given on
behalf of the petitioner, it is provided that
respondents 3 to 5 will have visiting rights
to the detenu.

17. The respondents 1 and 2 shall
ensure compliance of this order.
----------
(2023) 8 ILRA 1356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 746 of 2023

Awadhesh Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: