# Master Prakhar @ Palash & Anr v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-25
- **Case number:** Habeas Corpus Writ Petition No. 58386 of 2017
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-prakhar-palash-anr-v-state-of-u-p-ors-48431
- **Pages:** 3

## Headnote

G.A., Sri Rahul Sahai

Habeas Corpus-Corpus-minor son-does not
want to meet his father-resides with maternal
grandparents- father seek visitation rights-if
custody given to one parent-other parent must
have visitation rights-father cannot be deprived
of his visitation rights.

Petition disposed off. (E-9)

List of Cases cited:

## Text

5 All. Master Prakhar @ Palash & Anr. Vs. State of U.P. & Ors.
1459
appellate
Court
committed
error
in
dismissing the suit and the appeal, thus,
finding recorded by both the Courts below
are against the material on record as well as
the provisions of law and are, thus, set
aside.

22. Thus, considering the facts and
circumstance of the case, I find that the suit
filed by the plaintiffs as to the legal
character that they may declared as the
legal heirs of Markandey Pandey being the
sons and wife of the deceased and
Markandey Pandey be declared dead, was
very well maintainable before the trial
Court. Both the Courts below fell into trap
of holding that the suit as well as the appeal
was not maintainable.

23. The judgment and decree passed
by the lower appellate Court dated
04.08.2017 and judgment and decree dated
22.11.2016 passed by the trial Court is,
hereby, set aside. The suit filed by the
plaintiffs-appellants
seeking
relief
of
declaration as the legal heir of deceased
Markandey Pandey stands decreed.

24. In view of the above, as the the
judgment and decree of both the Court
below having been set aside, the second
appeal stands allowed.
----------
(2022)05ILR A1459
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Habeas Corpus Writ Petition No. 58386 of 2017

Master Prakhar @ Palash & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Amit Daga, Sri Mayank

Counsel for the Respondents:
G.A., Sri Rahul Sahai

Habeas Corpus-Corpus-minor son-does not
want to meet his father-resides with maternal
grandparents- father seek visitation rights-if
custody given to one parent-other parent must
have visitation rights-father cannot be deprived
of his visitation rights.

Petition disposed off. (E-9)

List of Cases cited:

1. Yashita Sahu Vs St. of Raj. & ors. in Criminal
Appeal No. 127 of 2020 (Special Leave Petition
(CRL) No. 7390 of 2019)
(Delivered by Hon'ble Anil Kumar Ojha,
J.)

1. Heard learned counsel for the
petitioners,
learned
counsel
for
the
respondent no. 5 & 6, learned A.G.A. for
the State and perused the record.

2. In compliance of order dated
12.04.2022, the respondent no. 5 & 6
produced the corpus Prakhar Singhania @
Palash before this Court.

3. On interaction and some queries,
the corpus replied that he does not want to
live with his father. He said that his name is
Prakhar Singhania and he is studying in
D.A.V. Public School, Ghaziabad. He
further stated that he does not want to meet
his father.

4. Submission of learned counsel for
the petitioner is that corpus is the son of
petitioner no. 2. The corpus Master Prakhar
Singhaniya is currently residing with his
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
maternal grand-father and grand-mother i.e.
respondent no. 5 & 6. Learned counsel for
the petitioner further submitted that the
petitioner no. 2 simply wants visitation
rights to meet his son i.e. corpus. Further
submitted that as petitioner no. 2 is the
father of corpus, so he should be given
visitation rights at least twice in a month
and at the festivals of Holi and Diwali.

5. Learned counsel for respondent no.
5 & 6 submitted that the corpus does not
want to meet his father i.e. petitioner no. 2,
hence, visitation rights should not be given
to
 petitioner no. 2.

6. In Yashita Sahu v. State of
Rajasthan & Ors. in Criminal Appeal No.
127 of 2020 (Special Leave Petition (CRL)
No. 7390 of 2019) the Hon'ble Apex Court
has held as follows:

"9. It is too late in the day to urge
that a writ of habeas corpus is not
maintainable if the child is in the custody of
another parent. The law in this regard has
developed a lot over a period of time but
now it is a settled position that the court
can
invoke
its
extraordinary
writ
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw v.
Arvand M. Dinshaw & Ors., Nithya Anand
Raghavan v. State (NCT of Delhi) & Anr.
and Lahari Sakhamuri v. Sobhan Kodali
among others. In all these cases, the writ
petitions were entertained. Therefore, we
reject the contention of the appellant wife
that the writ petition before the High Court
of Rajasthan was not maintainable.

19. A child, especially a child of
tender years requires the love, affection,
company, protection of both parents. This is
not only the requirement of the child but is
his/her basic human right. Just because the
parents are at war with each other, does not
mean that the child should be denied the
care, affection, love or protection of any
one of the two parents. A child is not an
inanimate object which can be tossed from
one parent to the other. Every separation,
every reunion may have a traumatic and
psychosomatic
impact
on
the
child.
Therefore, it is to be ensured that the court
weighs each and every circumstance very
carefully before deciding how and in what
manner the custody of the child should be
shared between both the parents. Even if
the custody is given to one parent, the
other
parent
must
have
sufficient
visitation rights to ensure that the child
keeps in touch with the other parent and
does
not
lose
social,
physical
and
psychological contact with any one of the
two parents. It is only in extreme
circumstances that one parent should be
denied contact with the child. Reasons
must be assigned if one parent is to be
denied any visitation rights or contact with
the child. Courts dealing with the custody
matters must while deciding issues of
custody clearly define the nature, manner
and specifics of the visitation rights.

21. Normally, if the parents are living
in the same town or area, the spouse who has
not been granted custody is given visitation
rights over weekends only. In case the spouses
are living at a distance from each other, it may
not be feasible or in the interest of the child to
create impediments in the education of the child
by frequent breaks and, in such cases the
visitation rights must be given over long
weekends, breaks and holidays. In cases like the
present one, where the parents are in two
different continents, effort should be made to
give maximum visitation rights to the parent
who is denied custody."

7. Thus, law on the above point is that
even if the custody is given to one parent,
5 All. Kumari Neha Vs. State of U.P. & Ors.
1461
the other parent must have sufficient
visitation rights to ensure that the child
keeps in touch with the other parent and
does
not
lose
social,
physical
and
psychological contact with any one of the
two parents. It is only in extreme
circumstances that one parent should be
denied contact with the child.

8. So far as the facts of the present
case are concerned, the corpus is residing
with his maternal grand-father and grandmother, therefore, this Court is of the
opinion that a father cannot be deprived of
his visitation rights.

9. In view of the law laid down by
Hon'ble Apex Court and considering the
facts and circumstances of this case,
petitioner no. 2 being father of the corpus is
entitled for visitation rights subject to
following conditions:

(1) Petitioner no. 2 is granted
visitation rights to meet his son i.e. corpus
once in every month, on the first opening
day of every month after study hours for
two hours at the School of corpus.

(2) Petitioner no. 2 is also granted
visitation rights to meet his son i.e. corpus
on the festival of Holi and Diwali, just
before the closing day before festival for
two hours at the School of corpus.

(3) Petitioner no. 2 shall not
create any disturbance in school campus
while meeting the corpus and he shall not
create any pressure upon the corpus in any
manner.

(4) It is made clear that SHO
concerned and Principal of DAV Public
School, Ghaziabad shall facilitate and
ensure the meeting of petitioner no. 2 with
corpus.

10. With the above directions, this
Habeas Corpus Writ Petition is disposed of
finally.
----------
(2022)05ILR A1461
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Habeas Corpus Writ Petition No. 126 of 2022

Kumari Neha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Chandra Yadav

Counsel for the Respondents:
G.A.

Habeas
Corpus-Mother
sought
illegal
detention of her daughter in custody of opposite
party-corpus St.d that she has married the
opposite party (homosexual marriage) -and both
are major-though their marriage cannot be
declared
legal-but
the
Petition
is
not
maintainable-corpus not in illegal detention.

Petition disposed off. (E-9)

List of Cases cited:

1. Navtej Singh Johar Vs U.O.I.,2018 (10) SCC 1
(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

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