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

- **Citation:** (2021) 11 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-14
- **Case number:** Habeas Corpus Writ Petition No. 615 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-parth-anr-v-state-of-u-p-ors-46616
- **Pages:** 9

## Headnote

Civil Law - Custody of Minor - Constitution of
India, Article 226 - Habeas Corpus Writ Petition
- extraordinary jurisdiction - Maintainability -
habeas corpus is very extraordinary jurisdiction
to be exercised in such cases where the illegal
confinement of the corpus is established -
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 -
welfare of the child has to be determined
owing to the facts and circumstances of each
case and the Court cannot take a pedantic
approach (Para 5, 7, 9)

Mother alleged that the child was abducted from the
her house by child father - no F.I.R. against the said
incident lodged - after a lapse of three months
Habeas Corpus petition filed - Held - dispute is
between father and mother - Both are natural
guardians of the child - proper remedy does not lie
before High Court Court - matter is of the civil nature
which can be determined only by the civil court at
appropriate forum

Dismissed. (E-5)

List of Cases cited:

## Text

812 INDIAN LAW REPORTS ALLAHABAD SERIES
no.1 is not in illegal custody of respondent no.4.
Accordingly, the writ petition is dismissed as
not maintainable.

9. Petitioner no.1 Deepmala Giri is major,
therefore she is free to go wherever and with
whomsoever she wants to go on her own sweet
will.
----------
(2021)11ILR A812
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Habeas Corpus Writ Petition No. 615 of 2021

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

Counsel for the Petitioners:
Sri Ajay Vikram Yadav, Sri Sunil Kumar Singh

Counsel for the Respondents:
A.G.A.

Civil Law - Custody of Minor - Constitution of
India, Article 226 - Habeas Corpus Writ Petition
- extraordinary jurisdiction - Maintainability -
habeas corpus is very extraordinary jurisdiction
to be exercised in such cases where the illegal
confinement of the corpus is established -
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 -
welfare of the child has to be determined
owing to the facts and circumstances of each
case and the Court cannot take a pedantic
approach (Para 5, 7, 9)

Mother alleged that the child was abducted from the
her house by child father - no F.I.R. against the said
incident lodged - after a lapse of three months
Habeas Corpus petition filed - Held - dispute is
between father and mother - Both are natural
guardians of the child - proper remedy does not lie
before High Court Court - matter is of the civil nature
which can be determined only by the civil court at
appropriate forum

Dismissed. (E-5)

List of Cases cited:

1. Smt. Meenakshi & anr. Vs St. of U.P. & 8 ors. 2020
12 ADJ 254

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

3. Manuj Sharma Vs St. of U.P. & ors. 2019(4) ADJ
840 (DB)

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the petitioners
and Shri Pankaj Srivastava, Shri C.B. Singh and
Shri Rakesh Chandra Srivastava, learned A.G.A.
for the State.

2. This writ petition has been filed with the
following prayer :-

"(i) a writ, order or direction in the
nature of Habeas Corpus commanding the
respondents to produce the corpus/ petitioner
no.1 before this Hon'ble Court and set him at
liberty/ custody of petitioner no.2 forthwith;

(ii) any other writ, order or direction
which this Hon'ble Court deems fit and

(iii) Award cost of writ petition as well
as compensation to the petitioners throughout."

3. The brief facts of the case are that the
marriage of the petitioner no.2 was solemnized
with the respondent no.4, according to the Hindu
rites and rituals on 14.12.2012 and out of
wedlock of the petitioner no.2 and the
respondent no.4, a baby/ son (petitioner no.1)
was born to them who is presently aged about
four years. Thereafter some dispute arose
11 All. Master Parth & Anr. Vs. State of U.P. & Ors.
813
between the parties and the respondent no.4,
hence a case under section 13B of the Hindu
Marriage Act was filed. In paragraph 9 of the
said divorce petition, specific averment was
made in respect of corpus that he will reside
with the petitioner no.2 and the divorce petition
was filed with mutual consent of the parties
before Principal Judge, Family Court, Firozabad
who allowed the same vide judgment and order
dated 25.02.2020.

4. Submission of learned counsel for the
petitioners is that as per judgment and order of
the Family Court, the petitioner no.1 was living
in the custody of petitioner no.2 but all of a
sudden on 20.5.2021 when the petitioner no.2
went outside the house, the respondent no.4
reached to the parental house of the petitioner
no.2 and forcefully abducted the corpus. He
further submits that several efforts in order to
get the child back were made but the petitioner
no.2 did not return the child and therefore the
corpus is illegally detained under the custody of
petitioner no.2 and hence, this writ petition is
being filed.

5. In support of his contention learned
counsel for the petitioner has specifically placed
reliance upon the paragraph 28 of the judgment
passed by this Court in the case of (Smt.
Meenakshi And Another Vs. State of U.P. and
8 Others) 2020 12 ADJ 254 which are quoted
herein below:-

"28. In the same vain are the remarks
of the Supreme Court in Tejaswini Gaud and
others vs. Shekhar Jagdish Prasad Tewari and
others, (2019) 7 SCC 42. In Tejaswini Gaud, it
has been held by their Lordships of the Supreme
Court:

"35. The welfare of the child has to
be determined owing to the facts and
circumstances of each case and the Court
cannot take a pedantic approach. In the present
case, the first respondent has neither abandoned
the child nor has deprived the child of a right to
his love and affection. The circumstances were
such that due to illness of the parents, the
appellants had to take care of the child for some
time. Merely because, the appellants being the
relatives took care of the child for some time,
they cannot retain the custody of the child. It is
not the case of the appellants that the first
respondent is unfit to take care of the child
except contending that he has no female support
to take care of the child. The first respondent is
fully recovered from his illness and is now
healthy and having the support of his mother
and is able to take care of the child."."

6. Learned A.G.A. on the other hand
submits that though the child was abducted from
the parental house of petitioner no.2 but no
F.I.R. against the said incident was lodged, and
after a lapse of three months this petition has
been filed at a belated stage which transpires
that there is no urgency of exercising this
extraordinary jurisdiction in the present matter.
He further submits that the proper remedy is
before the civil court under the Guardians and
Wards Act, 1890.

7. Learned A.G.A. has also placed reliance
on the judgements of :-

(i) Tejaswini Gaud and Others Vs.
Shekhar Jagdish Prasad Tewari and Others
(2019) 7 SCC 42 :-

"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
814 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(ii) Manuj Sharma Vs. State of U.P.
and Others [2019(4) ADJ 840 (DB)]. The
paragraphs 8-28 of the judgement are relevant
which are quoted as under :-

"8. Habeas corpus "ad subjiciendum"
means "that you have the body to submit or
answer" which is called as Festinum Remedium
- A speedy remedy, which has been sought by the
petitioner in this instant case.

9. Habeas Corpus is Latin for "you
have the body". The writ is referred to in full in
legal texts as habeas corpus ad subjiciendum or
more rarely ad subjiciendum et recipiendum. It
is sometimes described as the "great writ". It is
considered as a most expeditious remedy
available under the law.

10. The meaning of the term habeas
corpus is "you must have the body". Halsbury in
his Laws of England, 4th Edition, observed as
follows: -

"The writ of habeas corpus ad
subjiciendum which is commonly known as the
writ of habeas corpus is a prerogative process
for securing the liberty of the subject by
affording an effective means of immediate
release from the unlawful or unjustifiable
detention whether in prison or in private
custody. It is a prerogative writ by which the
queen has a right to inquire into the laws for
which any of her subjects are deprived of their
liberty."

11. In Corpus Juris Secundum, the
nature of the writ of habeas corpus is
summarized thus:

"The writ of habeas corpus is a writ
directed to the person detaining another,
commanding him to produce the body of the
prisoner at a designate time and place with the
day and cause of his caption and detention to
do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that
behalf. 'Habeas corpus' literally means "have
the body". By this writ, the court can direct to
have the body of the person detained to be
brought before it in order to ascertain whether
the detention is legal or illegal. Such is the
predominant position of the writ in the AngloSaxon Jurisprudence."

12.
In
the
Constitutional
and
Administrative Law by Hood Phillips and
Jackson it was stated as under: - (Relied upon
by the Supreme Court in the matter of
Surinderjit Singh Mand and another v. State of
Punjab
and
another,
to
highlight
the
importance and significance of personal liberty,
specially with reference to unlawful detention.)

"10. The legality of any form of
detention may be challenged at common law by
an application for the writ of habeas corpus.
Habeas corpus was a prerogative writ, that is,
one issued by the King against his officers to
compel them to exercise their functions properly.
The practical importance of habeas corpus as
providing a speedy judicial remedy for the
determination of an applicant's claim for
freedom has been asserted frequently by judies
(sic) and writers. Nonetheless, the effectiveness
of the remedy depends in many instances on the
width of the statutory power under which a
11 All. Master Parth & Anr. Vs. State of U.P. & Ors.
815
public authority may be acting and the
willingness of the courts to examine the legality
of decision made in reliance on wide-ranging
statutory provision. It has been suggested that
the need for the "blunt remedy' of habeas corpus
has diminished as judicial review has developed
into
an
ever
more
flexible
jurisdiction.
Procedural reform of the writ may be
appropriate, but it is important not to lose sight
of substantive differences between habeas
corpus and remedies under judicial review. The
latter are discretionary and the court may refuse
relief on practical grounds; habeas corpus is a
writ of right, granted ex debito justitiae."

13. Lord Halsbury LC in Cox v. Hates
held that "the right to an instant determination
as to lawfulness of an existing imprisonment" is
the substantial right made available by this writ.

14. Likewise in Barnardo v. Ford the
writ of habeas corpus has been described as a
writ of right which is to be granted ex debito
justitiae. Though a writ of right, it is not a writ
of course. The applicant must show a prima
facie case of his unlawful detention. Once,
however, he shows such a case and the return is
not good and sufficient he is entitled to this writ
as a matter of right.

15. In R. v. Secy. of State for Home
Affairs, it has been held that a person is not
entitled to be released on a petition of habeas
corpus if there is no illegal restraint. "The
question for a habeas corpus court is whether
the subject is lawfully detained. If he is, the writ
cannot issue, if he is not, it must issue."

16. Likewise in Cox v. Hakes it has
been held that the writ of habeas corpus is an
effective means of immediate release from
unlawful detention, whether in prison or private
custody. Physical confinement is not necessary
to constitute detention. Control and custody are
sufficient.

17. A Constitution Bench judgment of
the Supreme Court in the matter of Kanu Sanyal
v. District Magistrate, Darjeeling and others
traced the history, nature and scope of the writ
of habeas corpus. It has been held by Their
Lordships that it is a writ of immemorial
antiquity whose first threads are woven deeply
"within the seamless web of history and
untraceable among countless incidents that
constituted a total historical pattern of AngloSaxon jurisprudence". Their Lordships further
held that the primary object of this writ is the
immediate determination of the right of the
applicant's freedom and that was its substance
and its end. Their Lordships further explaining
the nature and scope of a writ of habeas corpus
held as under: -

"The writ of habeas corpus is
essentially a procedural writ. It deals with the
machinery of justice, not the substantive law.
The object of the writ is to secure release of a
person who is illegally restrained of his liberty.
The writ is, no doubt, a command addressed to a
person who is alleged to have another person
unlawfully in his custody requiring him to bring
the body of such person before the Court, but the
production of the body of the person detained is
directed in order that the circumstances of his
detention may be inquired into, or to put it
differently, "in the order that appropriate
judgment be rendered on judicial enquiry into
the alleged unlawful restrain". But the writ is
primarily designed to give a person restrained
of his liberty a speedy and effective remedy for
having the legality of his detention enquired into
and determined and if the detention is found to
be unlawful, having himself discharged and
freed
from
such
restraint.
The
most
characteristic element of the writ is its
peremptoriness. The essential and leading
theory of the whole procedure is the immediate
determination of the right to the applicant's
freedom and his release, if the detention is found
to be unlawful. That is the primary purpose of
816 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ, that is its substance and end. The
production of the body of the person alleged to
be wrongfully detained is ancillary to this main
purpose of the writ. It is merely a means for
achieving the end which is to secure the liberty
of the subject illegally detained."

18. In the matter of Union of India v.
Yamnam Anand M. alias Bocha alias Kora
alias Suraj and another,while explaining the
nature of writ of habeas corpus, Their Lordships
of the Supreme Court held that though it is a
writ of right, it is not a writ of course and the
applicant must show a prima facie case of his
unlawful detention. Paragraph 7 of the report
states as under: -

"7. Article 21 of the Constitution
having declared that no person shall be deprived
of life and liberty except in accordance with the
procedure established by law, a machinery was
definitely needed to examine the question of
illegal detention with utmost promptitude. The
writ of habeas corpus is a device of this nature.
Blackstone called it "the great and efficacious
writ in all manner of illegal confinement". The
writ has been described as a writ of right which
is grantable ex debito justitiae. Though a writ of
right, it is not a writ of course. The applicant
must show a prima facie case of his unlawful
detention. Once, however, he shows such a
cause and the return is not good and sufficient,
he is entitled to this writ as of right."

19. A writ of habeas corpus is not to
be issued as a matter of course. Clear grounds
must be made out for issuance of such writ. (See
Dushyant Somal v. Sushma Somal)

20. In the matter of Usharani v. The
Commissioner of Police, Bangalore and others,
the writ of habeas corpus has been defined very
lucidly as under: -

"The claim (for habeas corpus) has
been expressed and pressed in terms of concrete
legal standards and procedures. Most notably,
the right of personal liberty is connected in both
the legal and popular sense with procedures
upon the Writ of habeas corpus. The writ is
simply a judicial command directed to a specific
jailer directing him or her to produce the named
prisoner together with the legal cause of
detention in order that the legal warrant of
detention might be examined. The said detention
may be legal or illegal. The right which is
sought to be enforced by such a writ is a
fundamental right of a citizen conferred under
Article 21 of the Constitution of India.

11. The ancient prerogative writ of
habeas corpus takes its name from the two
mandatory words "habeas" and "corpus".
"Habeas Corpus" literally means "have his
body". The general purpose of these writs as
their name indicates was to obtain the
production of the individual before a Court or a
Judge. This is a prerogative process for securing
the liberty of the subject by affording an
effective relief of immediate release from
unlawful or unjustifiable detention, whether in
prison or in private custody. This is a writ of
such a sovereign and transcendent authority that
no privilege of power or place can stand against
it. It is a very powerful safeguard of the subject
against arbitrary acts not only of private
individuals but also of the executive, the greatest
safeguard for personal liberty, according to all
constitutional jurists. The writ is a prerogative
one obtainable by its own procedure. ... In our
country, it is this prerogative writ which has
been given a constitutional status under Articles
32 and 226 of the Constitution. Therefore, it is
an extraordinary remedy available to a citizen of
this country, which he can enforce under Article
226 or under Article 32 of the Constitution of
India."

21. Thus, the writ of habeas corpus is
a process by which a person who is confined
without legal justification may secure a release
11 All. Master Parth & Anr. Vs. State of U.P. & Ors.
817
from his confinement. The writ is, in form, an
order issued by the High Court calling upon the
person by whom a person is alleged to be kept in
confinement to bring such person before the
court and to let the court know on what ground
the person is confined. If there is no legal
justification for the detention, the person is
ordered to be released. However, the production
of the body of the person alleged to be
unlawfully detained is not essential before an
application for a writ of habeas corpus can be
finally heard and disposed of by the court. {See:
Kanu Sanyal (supra).}

22. In Nithya Anand Raghavan v.
State of NCT of Delhi and others, it has been
observed by the Apex Court:

"44. The present appeal emanates
from a petition seeking a writ of habeas corpus
for the production and custody of a minor child.
This Court in Kanu Sanyal v. District
Magistrate, Darjeeling & Ors., (2001) 5 SCC
247, has held that habeas corpus was essentially
a procedural writ dealing with machinery of
justice. The object underlying the writ was to
secure the release of a person who is illegally
deprived of his liberty. The writ of habeas
corpus is a command addressed to the person
who is alleged to have another in unlawful
custody, requiring him to produce the body of
such person before the Court. On production of
the person before the Court, the circumstances
in which the custody of the person concerned
has been detained can be inquired into by the
Court and upon due inquiry into the alleged
unlawful restraint pass appropriate direction as
may be deemed just and proper. The High Court
in such proceedings conducts an inquiry for
immediate determination of the right of the
person's freedom and his release when the
detention is found to be unlawful.

45. In a petition for issuance of a writ
of habeas corpus in relation to the custody of a
minor child, this Court in Sayed Saleemmuddin
v. Dr. Rukhsana and Ors., (2001) 5 SCC 247,
has held that the principal duty of the Court is to
ascertain whether the custody of child is
unlawful or 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.
While doing so, the paramount consideration
must be about the welfare of the child. In the
case of Mrs. Elizabeth (supra), it is held that in
such cases the matter must be decided not by
reference to the legal rights of the parties but on
the sole and predominant criterion of what
would best serve the interests and welfare of the
minor. The role of the High Court in examining
the cases of custody of a minor is on the
touchstone of principle of parens patriae
jurisdiction, as the minor is within the
jurisdiction of the Court (see Paul Mohinder
Gahun Vs. State of NCT of Delhi & Ors., (2004)
113 Delhi Law Time 823, relied upon by the
appellant). It is not necessary to multiply the
authorities on this proposition.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at the
threshold whether the minor is in lawful or
unlawful custody of another person (private
respondent named in the writ petition). For
considering that issue, in a case such as the
present one, it is enough to note that the private
respondent was none other than the natural
guardian of the minor being her biological
mother. Once that fact is ascertained, it can be
presumed that the custody of the minor with
his/her mother is lawful. In such a case, only in
exceptionable situation, the custody of the minor
(girl child) may be ordered to be taken away
from her mother for being given to any other
person including the husband (father of the
child), in exercise of writ jurisdiction. Instead,
the other parent can be asked to resort to a
substantive prescribed remedy for getting
custody of the child."
818 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Further, in Syed Saleemuddin v.
Dr. Rukhsana and Ors., it has been observed by
the Supreme Court:

"11. From the principles laid down in
the aforementioned cases 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.
Unfortunately, the Judgment of the High Court
does not show that the Court has paid any
attention to these important and relevant
questions. The High Court has not considered
whether the custody of the children with their
father can, in the facts and circumstances, be
said to be unlawful. The Court has also not
adverted to the question whether for the welfare
of the children they should be taken out of the
custody of their father and left in the care of
their mother. However, it is not necessary for us
to consider this question further in view of the
fair concession made by Shri M.N. Rao that the
appellant has no objection if the children remain
in the custody of the mother with the right of the
father to visit them as noted in the judgment of
the High Court, till the Family Court disposes of
the petition filed by the appellant for custody of
his children."

24. Having considered the aforesaid
judgments of the Supreme Court and the principles
laid down in the aforestated cases for grant of writ
of habeas corpus, it appears that the condition
precedent for instituting a petition seeking writ of
habeas corpus is the person for whose release, the
writ of habeas corpus is sought, must be in
detention and he must be under detention by the
authorities or by any private individual. It is his
detention which gives the cause of action for
maintaining the writ of habeas corpus. If the
allegations in the writ of habeas corpus read as a
whole do not disclose the detention, in other
words, if there is no allegation of illegal detention,
the writ petition seeking writ of habeas corpus is
liable to be rejected summarily. Such writ is
available against any person who is suspected of
detaining another unlawfully and the habeas
corpus Court must issue it, if it is shown that the
person on whose behalf it is asked for is unlawfully
deprived of his liberty. The writ can be addressed
to any person whatever - an official or a private
individual - who has another in his custody.

25. In view of the principles of law
laid down by various Courts, if facts of the
present case are seen, it is apparent that the
petitioner has failed to demonstrate that his
two minor children are illegally detained by his
wife (respondent no.7). The limited contention
of the petitioner is about the welfare of his
children,
which
according
to
his
own
assessment, can be better if children would be
with him. We are afraid, this self-appreciated
statement of the petitioner will not give him any
benefit in the present case. The mere fact that
the financial condition of the petitioner is
superior than that of respondent no.7, does not
give him any right for issuance of writ of
habeas corpus. If financial position is the only
criteria, then in every case, a person who is
financially strong would claim custody of child.
If a mother is struggling for her rights along
with her children, even assuming that she is
financially weak, she cannot be deprived of her
children just because her husband is a moneyed
man. The judgments relied upon by counsel for
the petitioner are of no help to him. Even
otherwise, in the case in hand, age of the
second child of the petitioner and respondent
no.7 is just about 2 1/2 years and, we do not
wish to separate the small baby from her
mother as well as her sister.
11 All. Master Parth & Anr. Vs. State of U.P. & Ors.
819

26. From the pleadings of the parties
and after hearing the arguments, it appears that
various allegations are levelled by the parties
against each other. It further appears that the
parties have not made any effort for amicable
settlement and are approaching the Court by
filing one case after another. We hope that some
efforts would be made by the parties for
amicable settlement and, according to us, that
would be actual welfare of the children.

27. In view of the aforesaid, in our
considered
opinion, the
petition has
no
substance, as no ground whatsoever has been
made for issuance of writ of habeas corpus.
Accordingly, we decline to exercise the
jurisdiction for issuance of writ of habeas
corpus.

28. The writ petition is, accordingly,
dismissed. However, dismissal of writ petition
shall not preclude the petitioner from seeking
remedy available to him in law. Any observation
made by this Court, while deciding this writ
petition, shall not come in the way of either
party."

8. The same question was involved before
the larger bench of this Court that whether the
habeas corpus is maintainable or not.

9. Both the judgments very clearly
demonstrates that it is not a proper forum to decide
such cases and the habeas corpus is very
extraordinary jurisdiction to be exercised in
such cases where the illegal confinement of the
corpus is established. In the present case the
incident took place on 20.5.2021 where the son of
petitioner no.2 was abducted by his father. The
dispute is between father and mother. Both are the
natural guardians of the child and therefore the
proper remedy does not lie before this Court. This
matter is of the civil nature which can be
determined only by the civil court at appropriate
forum.

10. Moreover, in the present case no F.I.R.
was lodged with regard to incident which took
place on 20.5.2021. That from perusal of the
paragraph-9 of the application it transpires that this
petition has been filed after the lapse of three
months. The argument raised by the petitioner that
while allowing the application 13B dated
25.2.2020 that it was settled between the parties
that the child-Parth will remain with the mother
which is not evident from the order passed by the
court below, hence, this argument of the
petitioner's counsel is not sustainable. The custody
of the child can be claimed before the civil court at
appropriate forum.

11. Moreover, the learned counsel for the
petitioner relied upon the judgement of Smt.
Meenakshi And Another Vs. State of U.P. and 8
Others) 2020 12 ADJ 254. The aforesaid
judgement is based upon the judgement of
Tejaswini Gaud and others vs. Shekhar Jagdish
Prasad Tewari and others, (2019) 7 SCC 42.

12. Now from perusal of this judgement
paragraph 20 of the judgement clearly states that
the writ of habeas corpus can be revoked only in
extraordinary circumstances. The judgement
also transpires that for the paramount welfare of
the ward, the other things are also considered
and in the present case the welfare of the child is
to be examined, so at this stage the detailed
consideration is required and the judgement
itself says that in such cases where the court is
of the view that detailed inquiry is required the
Court may decline to exercise the extraordinary
jurisdiction and direct the party to approach the
civil court.

13. From perusal of these judgements the
counsel for the petitioner failed to invoke any
extraordinary jurisdiction in the present matter.

14. That after considering the aforesaid
judgements and in view of the discussions made
820 INDIAN LAW REPORTS ALLAHABAD SERIES
above, this habeas corpus petition stands
dismissed.
----------
(2021)11ILR A820
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2021

BEFORE

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

Habeas Corpus Writ Petition No. 1057 of 2019

Awanish Pandey & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Mani Tripathi, Sri Adeel Ahmad Khan,
Sri Prem Narain Singh, Sri Ravi Yadav, Sri Anil
Kumar Srivastava

Counsel for the Respondents:
A.G.A., Anupama Tripathi, Sri Rakesh Kumar
Tripathi

Civil Law - Custody of minor - Constitution of
India, Art. 226 - Habeas corpus writ petition -
pregorative writ of habeas corpus, is in the
nature of extraordinary remedy, which should
be used only when it can be held that the
custody of the minor is illegal or unlawful -
court, exercising 'parens patriae' jurisdiction,
must give due weight age to the moral values
and the character of the proposed guardianpendency of a criminal case, wherein the father
has been charged of causing the death of the
minor's mother, is a relevant factor required to
be considered before an appropriate order
could be passed (Para 8, 10 )

Petition for custody of minor child sought by father
from maternal grandfather - Father accused in
pending criminal case u/s 498 & 304 I.P.C. & charged
of causing the death of a minor's mother - Petitioner
father not been able to point out as to how, the
custody of the minor with his maternal grandfather
can be said to be illegal or unlawful so as to persuade
this Court to exercise its extraordinary prerogative
jurisdiction for issuing a writ of habeas corpus - Not
disputed that any rights with regard to guardianship
or custody are to be agitated before appropriate
forum (Para 11)

Dismissed. (E-5)

List of Cases cited:

1. Nil Ratan Kundu & anr. Vs Abhijit Kundu (2008) 9
SCC 413

2. Kirtikumar Maheshankar Joshi Vs Pradipkumar
Karunashanker Joshi (1992) 3 SCC 573

3. Rachit Pandey (minor) & anr. Vs St. of U.P. & 3
ors. 2021 (2) ADJ 320

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

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

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

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

1. Heard Sri Anil Kumar Srivastava,
learned Senior Counsel assisted by Sri Prem
Narain Singh, learned counsel for the petitioners
and Sri Arvind Kumar, learned Additional
Government Advocate appearing for the Staterespondents. No one has appeared for the
respondent no. 4, though the names of counsel
are shown in the list.

2. The present petition for a writ of habeas
corpus has been filed seeking custody of the
petitioner n. 2, corpus, stated to be a minor of
age about five years and ten months, by the
petitioner no. 1 who asserts to be his father.

3. The facts as stated in the writ petition
indicate that the petitioner no. 2 was born in the
month of January, 2014 and on 11.05.2015, the