# Master Tarun @ Akchhat Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-15
- **Case number:** Habeas Corpus Writ Petition No. 192 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-tarun-akchhat-kumar-anr-v-state-of-u-p-ors-46940
- **Pages:** 6

## Headnote

A.G.A.

Father
claims
custody
of
his
minor
children-claiming
custody
with
their
mother as illegal-custody of minor is
3 All. Master Tarun @ Akchhat Kumar & Anr. Vs. State of U.P. & Ors.
299
directed to be taken away from mother -
only in exceptional circumstances-custody
not illegal-W.P. dismissed. (E-7)

Held, In a petition for a writ of habeas corpus
concerning a minor child, the Court, in a given
case, may direct to change the custody of the
child or decline the same keeping in view the
attending facts and circumstances.For the said
purpose it would be required to examine whether
the custody of the minor with the private
respondent, who is named in the petition, is lawful
or unlawful. In the present case,the private
respondent is none other than the biological
mother of the minor children. This being the fact,
it may be presumed that the custody of the
children
with
their
mother
is
not
unlawful.(para17)

Cases cited:

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

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES
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 approach the
appropriate court. The aforementioned legal
position has been considered in recent decisions
of this Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6 and
Master Manan @ Arush vs. State of U.P.
and others7.

16. In the present case it is undisputed
that the respondent no. 4 (wife) along with
her minor children, is living separately from
the petitioner no. 3 (husband) since the year
2013.

17. In a petition for a writ of habeas
corpus, the Court would be required to
examine, at the threshold, whether the minor
is in lawful or unlawful custody of the private
respondent named in the petition. In a case, as
the present one, once it is ascertained that the
private respondent is none other than the
biological mother of the minor children, the
custody of the children with their mother
cannot, prima facie, be stated to be illegal.

18. In the facts of the case, as aforesaid,
only in exceptional situation, the custody of
the minor children may be directed to be
taken away from the mother for being given
to any other person, including the father of
the children, in exercise of writ jurisdiction.

19. It may be reiterated that a writ of habeas
corpus, 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.

20. Proceedings for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act
initiated on a petition stated to have been filed by
the petitioner no. 3 (husband), being pending, any
claim with regard to ancillary reliefs pertaining to
custody or visitation rights may be agitated in the
said proceedings and the present petition seeking a
writ of habeas corpus is not liable to be entertained
in the facts of the case.

21. The petition stands accordingly
dismissed.
----------
(2021)03ILR A298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2021

BEFORE

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

Habeas Corpus Writ Petition No. 192 of 2021

Master Tarun @ Akchhat Kumar & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajesh Maurya

Counsel for the Respondents:
A.G.A.

Father
claims
custody
of
his
minor
children-claiming
custody
with
their
mother as illegal-custody of minor is
3 All. Master Tarun @ Akchhat Kumar & Anr. Vs. State of U.P. & Ors.
299
directed to be taken away from mother -
only in exceptional circumstances-custody
not illegal-W.P. dismissed. (E-7)

Held, In a petition for a writ of habeas corpus
concerning a minor child, the Court, in a given
case, may direct to change the custody of the
child or decline the same keeping in view the
attending facts and circumstances.For the said
purpose it would be required to examine whether
the custody of the minor with the private
respondent, who is named in the petition, is lawful
or unlawful. In the present case,the private
respondent is none other than the biological
mother of the minor children. This being the fact,
it may be presumed that the custody of the
children
with
their
mother
is
not
unlawful.(para17)

Cases cited:

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

2. Kanu Sanyal Vs District Magistrate Darjeeling,
(1973) 2 SCC 674

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

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

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

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

7. Master Manan @Arush Vs St. of U.P. & 8 ors.,
2021 0 Supreme (All) 230

8.Krishnakant Pandey (Corpus) & 2 ors. Vs St. Of
U.P. & 4 ors., 2021 0 Supreme (All) 220

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

1. Heard Sri Rajesh Maurya, learned
counsel for the petitioners and Sri Ratnendu
Kumar Singh, learned A.G.A. appearing for the
State respondents.

2. The present petition for a writ of habeas
corpus has been filed on behalf of two minor
children of age about 11 years and 5 years
respectively,
by
one
Ramesh
Chandra
Kanaujiya asserting himself to be their father
and natural guardian. It is sought to be
contended that the two minor children, who are
living with respondent no. 4 their mother, are
under her illegal custody, and accordingly
Ramesh Chandra Kanaujiya, being the father,
has claimed their custody.

3. The records of the case reflect that
earlier a Habeas Corpus Writ Petition No. 561
of 2020 (Meenu Devi Kanaujiya Vs. State of
U.P. and 3 others) was filed by Ramesh
Chandra Kanaujiya on behalf of his wife for a
writ of habeas corpus by claiming that she was
under an illegal detention. In the aforestated
writ petition, pursuant to issuance of a rule nisi,
the wife, Smt. Meenu Kanaujiya, was produced
before the Court on 10.11.2020 and considering
the stand taken by her, it was held that no case
of illegal confinement or illegal detention had
been made out and in view thereof the rule nisi
stood discharged and the petition was
dismissed.

4. The pleadings in the petition indicate
that the respondent no. 4 is working as a staff
nurse at Community Health Centre, Dasna in
District Ghaziabad.

5. It is undisputed that the respondent
no. 4 is living independently and separately
from her husband and the two minor
children, petitioner nos. 1 and 2, are under
her care and custody. The judgment and
order dated 10.11.2020 passed in earlier
Habeas Corpus Writ Petition No. 561 of
2020 also indicates that the respondent no.
300 INDIAN LAW REPORTS ALLAHABAD SERIES
4 is living separately from her husband on
her own free will.

6. Learned counsel for the petitioners
has not disputed the aforesaid fact with
regard to the respondent no. 4 living
separately and having her own independent
source of income and the two minor
children being under the care and custody
of the respondent no. 4, their mother.

7. Learned A.G.A. appearing for the
State respondents points out that the
custody of the minor children with their
mother in the facts and circumstances of
the case cannot be stated to be illegal and
any claim which is sought to be set up on
behalf of the father with regard to
guardianship or custody may be agitated
before the appropriate forum and a petition
for a writ of habeas corpus would not be
entertainable in the facts of the case.

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
3 All. Master Tarun @ Akchhat Kumar & Anr. Vs. State of U.P. & Ors.
301
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 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. In an application seeking a writ of
habeas corpus for custody of minor
children, as is the case herein, the principal
consideration for the court would be to
ascertain whether the custody of the
children can be said to be unlawful and
illegal and whether their welfare requires
that the present custody should be changed
and the children should be handed over in
the care and custody of somebody else
other than in whose custody they presently
are.
302 INDIAN LAW REPORTS ALLAHABAD SERIES

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
approach
the
appropriate
court.
The
aforementioned legal position has been
considered in a recent decisions of this
Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6,
Master Manan @ Arush vs. State of U.P.
and 8 others7 and Krishnakant Pandey
(Corpus) And 2 Others vs. State Of U.P.
And 3 Others8.

16. It is undisputed that two minor
children are under the care and custody of
their mother, respondent no. 4, who is
living independently and separately from her
husband. It is not the case of the petitioner
that the children were forcibly taken away by
the mother from the custody of the father.

17. In a petition for a writ of habeas
corpus concerning a minor child, the Court,
in a given case, may direct to change the
custody of the child or decline the same
keeping in view the attending facts and
circumstances. For the said purpose it would
be required to examine whether the custody
of the minor with the private respondent, who
is named in the petition, is lawful or
unlawful. In the present case, the private
respondent is none other than the biological
mother of the minor children. This being the
fact, it may be presumed that the custody of
the children with their mother is not unlawful.
It would only be in an exceptional situation
that the custody of a minor may be directed to
be taken away from the mother for being
given to any other person - including father of
the child, in exercise of writ jurisdiction. This
would be so also for the reason that the other
parent, in the present case, the father, can take
resort to the substantive statutory remedy in
respect of his claim regarding custody of the
child.

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. Counsel for the petitioners has not
disputed the aforesaid factual position and the
only grievance, which is sought to be raised,
is with regard to a claim for visitation rights
on behalf of the father.

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

21. In view of the aforestated facts,
this Court is not inclined to entertain the
writ petition seeking a writ of habeas
corpus, in the facts and circumstances of
the case.

22. The petition stands accordingly
dismissed.
----------
3 All. Smt. Soniya & Anr. Vs. State of U.P. & Ors.
303
(2021)03ILR A303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 283 of 2020

Smt. Soniya & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sushil Kumar Pandey

Counsel for the Respondents:
A.G.A.

Husband filed petition seeking wife's
custody-undisputed
fact
of
husband's
extra marital affair and child born out of
it-wife went away out of free will-writ of
habeas corpus to regain his wife-may not
be available as a matter of course-W.P.
dismissed. (E-7)

Cases cited:

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

2.Kanu Sanyal Vs District Magistrate, Darjeeling,
(1973) 2 SCC 674

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

1. Heard Sri Sushil Kumar Pandey,
learned counsel for the petitioners and Sri
Arvind
Kumar,
learned
Additional
Government Advocate appearing for the
State - respondents.

2. The present petition for a writ of
habeas corpus has been filed with a prayer
to produce the corpus of the petitioner no.1,
stated to be under detention.

3. A progress report/affidavit of the
Circle
Officer,
City-I,
District
Muzaffarnagar was filed by the learned
Additional Government Advocate on the
previous occasion on 02.02.2021 and on
the basis thereof a submission was made
that the investigation had revealed that the
petitioner no.1 had left her matrimonial
home on her own on account of discord
with her husband, petitioner no.2, for the
reason that he is stated to have entered into
another marriage and a child is also stated
to have been born out of the wedlock and in
view of the same it was contended that the
present petition for a writ of habeas corpus
would not be entertainable.

4. Learned counsel for the petitioners
had prayed for an adjournment in order to
address
the
Court on
the
aforesaid
objection raised by the learned Additional
Government Advocate.

5. Today, when the matter is taken up,
the learned counsel appearing for the
petitioners though disputing the factum of
the second marriage has not controverted
the fact of the petitioner no.2 being in an
extra marital relationship and also that a
child was born out of the said relationship.
He has also not disputed the fact that the
petitioner no.1 (wife) left her matrimonial
home on account of the discord with the
petitioner no.2 (husband).

6. No other point was urged.

7. 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