# Master Riyansh Singh (Minor) v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-02
- **Case number:** Habeas Corpus Writ Petition No. 486 of 2022
- **Bench:** Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-riyansh-singh-minor-v-state-of-u-p-ors-48962
- **Pages:** 6

## Headnote

Civil Law - Constitution of India,1950 -
Article 226, - Indian Penal Code, 1860 -
Sections 323, 363, 504 & 498-A, - The
Dowry Prohibition Act, 1961 - Sections 3
& 4 - Domestic Violence Act, 2005 -
Sections - 12 & 323 - Writ of Habeas
Corpus - object and scope - to maintainability
of a writ of Habeas Corpus detention by
parents or others is found to be illegal and
without any authority of law - in the instant
case claim of petitioner relating to custody of
a minor child from her husband - there is a
matrimonial dispute between husband and
wife - mother lodged an FIR with allegation
that her husband along with his family
member had forcibly snatched her son -
alleged child is not under unlawful or illegal
detention, and applicant can avail an equally
and efficacious alternative remedy under the
Hindu Marriage and Guardianship Act, or
under the Guardians and Wards Act, as the
case may be - hence, court is not inclined to
exercise
its
extraordinary
jurisdiction
to
entertain
the
present
petition
-
the
prerogative writ of Habeas Corpus is in the
nature of extraordinary remedy when there is
no any ordinary remedy provided under the
law is available - petition lacks merit and is
hereby dismissed.(Para 8, 9, 10)

Appeal allowed. (E-11)

List of Cases cited:

## Text

9 All. Master Riyansh Singh (Minor) Vs. State of U.P. & Ors.
1059
26.07.1983 passed by the Learned Special
Judge, Fatehpur in Session Trial No. 104
of 1983 (State vs. Ram Autar Kori),
arising out of Case Crimes No. 172/1982,
under Section 302 IPC, Police Station
Khakhreru, District Fatehpur, acquitting
the accused-respondent-Ram Autar s/o
Ram Swarup Kori is set aside and
reversed. The accused-respondent-Ram
Autar s/o Ram Swarup Kori is held guilty
of committing offence punishable under
Section 302 IPC.

46. For the offence under Section
302 I.P.C., the accused-respondent Ram
Autar s/o Ram Swarup Kori is sentenced
to undergo simple imprisonment for life
and to pay a fine of Rupees Twenty
Thousand Only (Rs. 20,000/-) and if he
fail to pay the amount of fine, he shall
have to undergo imprisonment for a
period of six months in lieu thereof.

47. The accused-respondent -Ram
Autar s/o Ram Swarup Kori is directed to
surrender
before
the
learned
Chief
Judicial Magistrate, Fatehpur within a
period of 15 days from the date of this
order to serve out the sentence awarded
to him. In case he does not surrender
within the stipulated time, learned Chief
Judicial
Magistrate,
Fatehpur
shall
commit him to custody as per law.

48. Let a certified copy of this
judgment and order be sent to the Court
concerned immediately for ensuring its
compliance.
----------
(2022) 9 ILRA 1059
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2022

BEFORE

THE HON'BLE OM PRAKASH TRIPATHI, J.

Habeas Corpus Writ Petition No. 486 of 2022

Master Riyansh Singh (Minor) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Avnish
Kumar
Srivastava,
Sri
Mohammad Anas Raza

Counsel for the Respondents:
G.A., Sri Syed Riyaz Askari

Civil Law - Constitution of India,1950 -
Article 226, - Indian Penal Code, 1860 -
Sections 323, 363, 504 & 498-A, - The
Dowry Prohibition Act, 1961 - Sections 3
& 4 - Domestic Violence Act, 2005 -
Sections - 12 & 323 - Writ of Habeas
Corpus - object and scope - to maintainability
of a writ of Habeas Corpus detention by
parents or others is found to be illegal and
without any authority of law - in the instant
case claim of petitioner relating to custody of
a minor child from her husband - there is a
matrimonial dispute between husband and
wife - mother lodged an FIR with allegation
that her husband along with his family
member had forcibly snatched her son -
alleged child is not under unlawful or illegal
detention, and applicant can avail an equally
and efficacious alternative remedy under the
Hindu Marriage and Guardianship Act, or
under the Guardians and Wards Act, as the
case may be - hence, court is not inclined to
exercise
its
extraordinary
jurisdiction
to
entertain
the
present
petition
-
the
prerogative writ of Habeas Corpus is in the
nature of extraordinary remedy when there is
no any ordinary remedy provided under the
law is available - petition lacks merit and is
hereby dismissed.(Para 8, 9, 10)

Appeal allowed. (E-11)

List of Cases cited:

1. Sayed Saleemuddin Vs Dr. Rukhsana & ors.
(2001) 5 SCC 247,
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Nithya Anand Raghvan Vs St. (NCT of Delhi)&
anr. (2017) 8 SCC 454,

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

(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Counter affidavit filed Shri Syed
Riyaz Askari on behalf of opposite party
nos. 4 & 5 today in the Court, is taken on
record.

2. Heard leaned counsel for petitioner,
learned counsel for opposite party nos. 4
and 5 and learned A.G.A. for State.

3. This habeas corpus writ petition
has been filed by seeking following
reliefs:-

(i) Issue a writ order or direction
in the nature of Habeas Corpus directing
the respondent nos. 4, 5 and 6 to produce
the detenue petitioner, namely Master
Riyansh Singh (Minor Detenue) before this
Court.

(ii) Issue a writ, order or direction
in the nature of mandamus commanding
the respondents to set free the petitioner
from the illegal detention and to allow him
to go and live with his natural guardian i.e.
mother and not to interference/create any
kind of hindrance in the peaceful living of
the petitioner- detenue with his mother.

4. Learned counsel for petitioner
submitted that marriage between deponent
(Smt. Komal)and the opposite party no. 4
(Satendra) was solemnized on 13.07.2016
under Hindu Rites and Rituals. Due to their
wedlock, a male child namely Riyansh
Singh was born who is presently four years
old. When deponent came to know that
opposite party no. 4 was earlier married
with one Alka and the said fact was
concealed thereafter deponent protested the
said concealment then opposite party no. 4
started she was being subjected with
cruelty and torture. It is further submitted
that opposite party no. 4 is not treating the
petitioner o. 1 well and that he has been
illegally detained by the respondent nos. 4
to 6. In this connection the mother of the
corpus has approached police authorities
but of no avail. No information is being
given in regard to the petitioner no. 1. It
was submitted that custody of petitioner no.
1 be handed over to his mother.

5. It is well settled that writ of habeas
corpus is a prerogative writ and an
extraordinary remedy. 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 case of Sayed
Saleemuddin vs. Dr. Rukhsana and others
(2001) 5 SCC 247 and 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. In said case it
was held as under:-

"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
9 All. Master Riyansh Singh (Minor) Vs. State of U.P. & Ors.
1061
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court..."

6. Similarly, in the case of Nithya
Anand Raghvan v State (NCT of Delhi)
and another 2017 8 SCC 454, 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. The
relevant
observations
made
in
the
judgement are as follows:-

"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, (1973) 2
SCC 674, 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 Saleemuddin v. Rukhsana, (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
Elizabeth Dinshaw v. Arvand M. Dinshaw,
(1987) 1 SCC 42, 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 (NCT of
Delhi), 2004 SCC OnLine Del 699, relied
upon by the appellant]. It is not necessary
to
multiply
the
authorities
on
this
proposition.

46. The High Court while dealing
with the petition for issuance of a writ of
habeas corpus concerning a minor child, in
a given case, may direct return of the child
or decline to change the custody of the
child keeping in mind all the attending facts
and circumstances including the settled
legal position referred to above. Once
again, we may hasten to add that the
decision of the court, in each case, must
depend on the totality of the facts and
circumstances of the case brought before it
whilst considering the welfare of the child
which is of paramount consideration. The
order of the foreign court must yield to the
welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for
mere enforcement of the directions given by
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
the foreign court against a person within its
jurisdiction and convert that jurisdiction
into that of an executing court. Indubitably,
the writ petitioner can take recourse to
such other remedy as may be permissible in
law for enforcement of the order passed by
the foreign court or to resort to any other
proceedings as may be permissible in law
before the Indian Court for the custody of
the child, if so advised.

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."

7. The issue of maintainability of a
habeas corpus petition under Article 226 of
the Constitution of India in matters of
custody of minor was also considered in
case of Tejaswini Gaud and others vs.
Shekhar Jagdish Prasad Tewari and
others (2019) 7 SCC 42, 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
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
9 All. Master Riyansh Singh (Minor) Vs. State of U.P. & Ors.
1063
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."

8. What emerges from above stated
authorities is that the exercise of the
extraordinary jurisdiction for issuance of a
writ of habeas corpus would, therefore, be
considered
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 would become
entitled to the writ. In an application seeking
a writ of habeas corpus for custody of 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 his/her welfare requires that the
present custody should be changed and the
child should be handed over in the care and
custody of someone else. Proceedings in the
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.

9. From the perusal of record it appears
that Smt. Komal had lodged F.I.R under
Sections 498-A, 323, 363, 504 I.P.C. and
Section 3/4 D.P. Act, P.S.- Babugadh,
District- Hapur in Case Crime No. 157/2022
in which it has been stated that on 29.04.2022
when she was coming from the school with
her son Riyansh, her mother-in-law and
husband forcibly snatched her son in which
accused Alka Chaudhary and Satendra have
been granted anticipatory bail. Komal has
also filed a case under Section 12 of
Domestic Violence Act against Satendra and
others, pending before the competent court.
The minor son Riyansh is living in the
custody of his father who is natural guardian
and Smt. Komal had also lodged F.IR. against
the husband and family members of the
husband. It shows that custody of the alleged
child is not unlawful or illegal and applicant
has equally efficacious relief which can be
availed by her for the custody of child.

10. Considering the facts of the matter
as well as the aforesaid position of law, it is
apparent that the remedy in such matters
would lie under the Hindu Minority and
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
Guardianship Act, 1956 or Guardians and
Wards Act, 1890 GWA, as the case may be.
In view of aforesaid, this Court is not
inclined to exercise its extraordinary
jurisdiction to entertain the present petition
seeking a writ of habeas corpus.

11. The instant habeas corpus petition
lacks merit and it is hereby dismissed.
----------
(2022) 9 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 19316 of 2020

Mtv Buddhist Religious And Charitable
Trust & Anr. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anuj Dayal, Amit Jaiswal Ojus Law, Nipun
Singh, Raghav D. Garg

Counsel for the Respondents:
C.S.C., Gyanendra Kumar Srivastav, Kshitij
Mishra, Rishabh Kapoor

Civil Law - The Constitution of India, 1950-
Allahabad High Court Rules- Chapter XXII
Rule 7 - Filing the earlier writ petition
wherein
liberty
was
granted
to
the
petitioners to approach the authorities for
redressal
of
their
grievances,
cannot
amount to abandonment of the claim of the
petitioners to seek a direction that the
petitioner-institution be treated as Minority
Institution and other ancillary reliefs.

Withdrawal of writ petition with liberty to
approach the authorities would not amount to
abandonment of claim and a subsequent writ
petition will be maintainable against the order
so passed by the authority.

Civil Law - The National Commission for
Minority
Educational
Institutions
Act,
2004- Section 2(g)- Section 11- Uttar
Pradesh Private Professional Educational
Institutions (Regulation of Admission and
Fixation of Free) Act, 2006- Sections 2 & 3
(a)- Section 3(h)- Minority Institution as
defined in U.P. Act No.24 of 2006 in an
institution which is not only established
and is being administered by a minority
but it should be notified as such by the
State
Government-
Thus,
mere
administration
of
an
educational
institution by minority or minorities is not
sufficient or enough to declare such an
Educational Institution to be a Minority
Educational Institution even within the
meaning of section 2(g) of the Act, 2004 -
When the petitioner no.2 was established,
the petitioner no.1, on its own showing
was not a minority. Merely because after
the members of the Trust-petitioner no.1
adopted
Bhuddhism
and
thus
the
petitioner no.1 became minority and it has
since been administering the petitioner
no.2, petitioner no.2 will not become a
Minority Educational Institution for the
reason that it was established at a time
when admittedly the petitioner no.1 was
not a minority which is said to have
become minority only in the year 2015- If
a society or a Trust did not comprise of
members of any Minority Community
(either linguistic or religious) at the time
when
it
established
an
educational
institution and subsequently attains the
status
of
a
minority
and
starts
administering such an institution, in our
considered opinion, in such a situation the
educational
institution
concerned
will
neither be a Minority Institution within
U.P. Act No.24 of 2006, nor shall it be
Minority Educational Institution within
Act, 2004.

Merely administering the educational institution
is not sufficient to grant it minority status but it
is incumbent that the society or trust has to
comprise of minority members at the time of
establishing the Institution and any conferment