# Master Vaibhav Shukla(Minor) v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Habeas Corpus No. 38173 of 2018
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-vaibhav-shukla-minor-v-state-of-u-p-ors-45068
- **Pages:** 7

## Headnote

A. Constitution of India - Article 226 -
Writ of Habeas Corpus - Custody of minor
child - Paramount consideration is the
welfare of the minor and not the legal
right of this or that particular party - In
the habeas corpus petition, the custody
of the minor child is to be taken care of -
Only in exceptional 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 - Held, the custody of the
child is in right hands of biological
mother, who is managing affairs by
running a beauty parlour to provide
comfort, health, education and other
developments of the child required for
future developments, rather in the hands
of the grandmother, who is aged about
72 years (Para 16, 18, 23 and 24)

Habeas Corpus Writ Petition dismissed.
(E-1)

List of cases cited :-

## Text

1 All. Master Vaibhav Shukla (Minor) Vs. State of U.P. & Ors.
359
serving prohibited meat to the members of
the congregation (minority community
alone) in a tent installed at Sanskar Farm
House,
yet
the
detaining
authority
cumulatively considers the impact of Case
Crime Nos. 583 & 584, both of 2018 while
passing the orders of detention, displays
absolute non-application of mind.

(v) The alleged disturbance of
public order on 3.12.2018, resulting in an
unfortunate death of Inspector In-charge
Subodh Kumar and one Sunil Kumar is
not attributable to petitioners as the same
was a sequel to the information disclosed
by one Yogesh Raj, an informant of Case
Crime No. 582 of 2018, who claimed to be
a witness of slaughtering of 6 cows by 7
named accused, who stood exonerated.

14. We, in the light of above
discussion, are of the considered view that
the detaining authority and the State
Government
displayed
absolute
nonapplication of mind while issuing and
approving
the
order
of
detention.
Consequently, the order dated 4.4.2019
cannot be sustained, is liable to be set
aside and the petitioners be set at liberty
forthwith.

15. The Habeas Corpus Writ
Petitions are allowed. The impugned order
dated 4.4.2019 is quashed. The petitioners
are set at liberty forthwith unless detained
in any other case.
----------
(2020)1ILR 359

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2019

BEFORE
THE HON'BLE IRSHAD ALI, J.

Habeas Corpus No. 38173 of 2018
Master Vaibhav Shukla(Minor)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
R.B.S. Rathaur, Indra Prakash Singh

Counsel for the Respondents:
G.A., Rahul Singh 'Rana'

A. Constitution of India - Article 226 -
Writ of Habeas Corpus - Custody of minor
child - Paramount consideration is the
welfare of the minor and not the legal
right of this or that particular party - In
the habeas corpus petition, the custody
of the minor child is to be taken care of -
Only in exceptional 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 - Held, the custody of the
child is in right hands of biological
mother, who is managing affairs by
running a beauty parlour to provide
comfort, health, education and other
developments of the child required for
future developments, rather in the hands
of the grandmother, who is aged about
72 years (Para 16, 18, 23 and 24)

Habeas Corpus Writ Petition dismissed.
(E-1)

List of cases cited :-
1. Dr. Mrs. Veena Kapoor Vs. Varinder Kumar
Kapoor; AIR 1982 SC 792
2. Nithya Anand Raghavan Vs. State (NCT of
Delhi) & Another; (2017) 8 SCC 454
3. Tejaswini Gaud & Others Vs. Shekhar Jagdish
Prasad Tewari & Others; (2019) 7 SCC 42

(Delivered by Hon'ble Irshad Ali, J.)

(1) Heard learned counsel for the
petitioner, learned A.G.A. for the State and
learned counsel for the respondent No.3.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Present writ petition under
Article 226 of the Constitution of India has
been filed for issuance of a writ in the
nature
of
habeas
corpus
directing
respondents to produce the petitioner
Vaibhav Shukla before this Court, set him
at liberty and allow him to go and live
with his grandparents.

(3) For adjudication of the controversy,
it is necessary to narrate some facts in brief.
From the pleadings on record, it transpires
that the deponent Smt. Sushma Shukla who is
the grandmother of the petitioner Vaibhav
Shukla had two sons - Gaurav Shukla and
Gagan Shukla. Ganga Shukla was married to
Nisha
Shukla,
respondent
No.3.
The
petitioner was born from the wedlock on
19.9.2014. It has been pleaded that late Gagan
Shukla had earlier married with Shweta
Shukla in the year 2002 and a daughter Nitya
Shukla was born in the year 2005. As Gagan
Shukla did not have good terms with the
deponent, he along with opposite party No.3
was residing separately with the deponent.

Gagan Shukla succumbed to the
injuries caused in a road accident on
20.7.2018. For sometime, respondent No.3
lived with the petitioner in the house
where Smt. Sushma Shukla was residing,
however, it appears that due to strained
relationship, the respondent No.3 shifted
to another residence owned by the
deponent. The child was got admitted by
the deponent in a school "Kidzee",
Amrishpuri Colony, Raebareli where he
has been studying.

It has further been stated that due to
the harassment meted out at the hands of
respondent No.3, the husband of the
deponent
filed
a
writ
petition
No.4825(M/B) of 2015 titled "Brijesh
Shukla versus The State of U.P. and
others" before this Court with the prayer
for issuance of a writ of mandamus
directing the respondent State to provide
security to him. The writ petition was
finally disposed of vide order dated
2.12.2015 passed by this Court.

It has also been pleaded in the
petition that one Raj Kumar Singh alias
Munna had illicit relations with respondent
No.3. The said Raj Kumar Singh is a life
convict in Sessions Trial No.294 of 1995
under Section 326 I.P.C. Raj Kumar Singh
has been enlarged on bail in a criminal
appeal filed before this Court.

Supplementing the pleadings, it has
been stated that due to the strained
relations and the atrocities being made by
the opposite party No.3, the deponent and
her husband severed all the ties with
Gagan Shukla (deceased). Mother of the
petitioner has opened a Beauty Parlour at
ground floor of the residence owned by the
deponent at M-3, Amrishpuri Colony,
Kanpur Road, Raebareli. The opposite
party No.3 and her parents have ill motive
to usurp the property of the deponent and
by one way or the other has been harassing
the deponent and her husband.

The deponent and her husband had
already invested considerable money in
favour of the petitioner. The future of the
petitioner is not safe with mother.

(4) A counter affidavit has been filed by
Smt. Nisha Shukla, opposite party No.3. It
has been stated that the child has been
residing with her and is leading a good and
healthy life. The child has never met his
grandparents. Relationship with Raj Kumar
Singh has also been denied by the deponent
of the counter affidavit. Lastly, it has been
prayed that the petition be dismissed.

(5) Rejoinder affidavit filed by the
petitioner almost reiterates the averments
made in the writ petition.
1 All. Master Vaibhav Shukla (Minor) Vs. State of U.P. & Ors.
361

(6) Submission of learned counsel
for the petitioner is that Master Vaibhav
Shukla has been detained by the mother
Smt. Nisha Shukla W/o Late Gagan
Shukla (respondent No.3), who was
having no good relations with her
husband, therefore, the custody of the
minor child Master Vaibhav Shukla be
handed over to the grand mother Smt.
Sushma Shukla. He further submits that in
the habeas corpus petition, the welfare of
the minor child is the relevant factor to be
considered by considering the custody of
the child. The grand mother is not an
outsider, therefore, for the welfare of the
child, the custody should be handed over
to the grand mother.

(7) In support of his submission,
learned counsel for the petitioner placed
reliance upon certain judgments of the
Hon'ble Supreme Court, which are as
under :-

(i) Dr. Mrs. Veena Kapoor Vs.
Varinder Kumar Kapoor; AIR 1982
SUPREME COURT 792

(ii) Nithya Anand Raghavan
Vs. State (NCT of Delhi) & Another;
(2017) 8 SCC 454

(iii) Tejaswini Gaud & Others
Vs. Shekhar Jagdish Prasad Tewari &
Others; (2019) 7 SCC 42

(8) On the other hand, learned
A.G.A. and learned counsel for respondent
No.3 submitted that the respondent No.3 is
the biological mother and the custody of
the child is in right hands, therefore, the
welfare of the child is in the hands of
respondent No.3. They further submitted
that the grand mother is aged about 72
years and is not able to look after the
affairs of the minor child Master Vaibhav
Shukla in correct prospective. It is the
submission that the judgments relied upon
by learned counsel for the petitioner are
distinguishable
on
the
facts
and
circumstances of the present case.

(9) After having heard the rival
contention of learned counsel for the
parties, I perused the material on record as
well as the judgments relied upon by
learned counsel for the petitioner.

(10) On perusal of the material on
record, it is transpired that Smt. Sushma
Shukla, who is the grand mother of Master
Vaibhav Shukla has two sons namely,
Gaurav Shukla and Gagan Shukla. Ganga
Shukla was married to Nisha Shukla,
respondent No.3. The petitioner was born
from the wedlock on 19.9.2014. Gagan
Shukla, due to road accident, died on
20.7.2018. The minor child Vaibhav
Shukla is now residing along with the
biological
mother
(respondent
No.3).
Master Vaibhav Shukla is pursuing his
studies in a school "Kidzee", Amrishpuri
Colony, Raebareli.

(11) Certain allegations have also
been levelled against the respondent No.3
in regard to the illicit relationship with one
Raj Kumar Singh, who is life convict and
on bail in the appeal filed before this
Court.

(12) The respondent No.3 has opened
a beauty parlour and with the income, is
managing the day to day affairs of her life
including providing better education to
Master Vaibhav Shukla.

(13) It appears that there are some
investments in the name of Master
Vaibhav Shukla, which causes dispute in
filing the present petition before this
Court.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

(14) On perusal of the material on
record, it is reflected that child has been
residing with the respondent No.3 and
leading a good and healthy life and the
relationship with Raj Kumar Singh has
also been denied by the respondent No.3.

(15) In regard to the judgment relied
upon by learned counsel for the petitioner
in the case of Dr. Mrs. Veena Kapoor
(Supra), the relevant is paragraph 2, which
is being quoted below :-

"2. It is well settled that in matters
concerning the custody of minor children,
the paramount consideration is the welfare
of the minor and not the legal right of this or
that particular party. The High Court,
without adverting to this aspect of the
matter, has dismissed the petition on the
narrow ground that the custody of child with
the respondent cannot be said to be illegal."

(16) On its perusal, it is reflected that
the Hon'ble Supreme Court while dealing
with the matter, has held that it is well settled
that in matters concerning the custody of
minor child, the paramount consideration is
the welfare of the minor and not the legal
right of this or that particular party. Here in
the present case, the biological mother
(respondent No.3) is running a beauty parlour
and is younger than the grand mother and the
child
is
pursuing
studies
under
the
guradianship of respondent No.3 by the
income of beauty parlour, which is run and
managed by the biological mother.

In view of the above, custody of
the minor child is safe in the custody of
respondent No.3 and not in the hands of
the grand mother.

(17) In regard to the another
judgment relied upon by learned counsel
for the petitioner in the case of Nithya
Anand Raghavan (Supra), the relevant is
paragraph 47, which is being quoted below
:-

"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."

(18) On perusal of the above referred
judgment, it is reflected that in the habeas
corpus petition, the custody of the minor
child is to be taken care of and only in
exceptional 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. It has further been held that in
exercise of writ jurisdiction, instead the
other parent can be asked to resort to a
substantive remedy for getting the custody
of the child.

(19) Here it is undisputed fact that
the child is in the custody of the biological
mother (respondent No.3) and the minor
1 All. Master Vaibhav Shukla (Minor) Vs. State of U.P. & Ors.
363
child is pursuing his studies in an
institution of District Raebareli and in
case, the custody of the child is claimed in
the present petition from the biological
mother, the welfare of the child will be
highly affected.

(20) In the opinion of the Court, the
respondent No.3 by running a beauty
parlour is managing her affairs as well as
expenditure of studies of her minor child,
therefore, the welfare of the child is in the
hands of respondent No.3 and not in the
hands of the grand mother, who is aged
about 72 years, therefore, the judgment
relied upon by the learned counsel for the
petitioner does not help in any manner.

(21) The last judgment, which has
been relied is in the case of Tejaswini
Gaud & Others (Supra), the relevant are
paragraphs 19, 20, 26 and 27, which are
being quoted below :-

"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.

26. The court while deciding the
child custody cases is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes govern the rights of the parents or
guardians, but the welfare of the minor is
the
supreme
consideration
in
cases
concerning custody of the minor child. The
paramount consideration for the court
ought to be child interest and welfare of
the child.

27. After referring to number of
judgments and observing that while
dealing with child custody cases, the
paramount consideration should be the
welfare of the child and due weight should
364 INDIAN LAW REPORTS ALLAHABAD SERIES
be given to child's ordinary comfort,
contentment, health, 8 Lahari Sakhamuri
v. Sobhan Kodali 2019 (5) SCALE 97
education, intellectual development and
favourable surroundings, in Nil Ratan
Kundu9, it was held as under:-

"49.
In
Goverdhan
Lal
v.
Gajendra Kumar, AIR 2002 Raj 148 the
High Court observed that it is true that the
father is a natural guardian of a minor child
and therefore has a preferential right to
claim the custody of his son, but in matters
concerning the custody of a minor child, the
paramount consideration is the welfare of
the minor and not the legal right of a
particular party. Section 6 of the 1956 Act
cannot
supersede
the
dominant
consideration as to what is conducive to the
welfare of the minor child. It was also
observed that keeping in mind the welfare of
the child as the sole consideration, it would
be proper to find out the wishes of the child
as to with whom he or she wants to live.

50.
Again,
in
M.K.
Hari
Govindan v. A.R. Rajaram, AIR 2003 Mad
315 the Court held that custody cases
cannot be decided on documents, oral
evidence or precedents without reference
to "human touch". The human touch is the
primary one for the welfare of the minor
since the other materials may be created
either by the parties themselves or on the
advice of counsel to suit their convenience.

51. In Kamla Devi v. State of
H.P. AIR 1987 HP 34 the Court observed:

"13. ... the Court while deciding
child custody cases in its inherent and
general jurisdiction is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can
stand in the way of the Court exercising its
parens patriae jurisdiction arising in such
cases
giving
due
weight
to
the
circumstances such as a child's ordinary
comfort, contentment, intellectual, moral
and physical development, his health,
education and general maintenance and
the favourable surroundings. These cases
have to be decided ultimately on the
Court's view of the best interests of the
child whose welfare requires that he be in
custody of one parent or the other." 9 Nil
Ratan Kundu v. Abhijit Kundu, (2008) 9
SCC 413

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
and complex question as to the custody of
a minor, a court of law should keep in
mind the relevant statutes and the rights
flowing therefrom. But such cases cannot
be decided solely by interpreting legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict
rules of evidence or procedure nor by
precedents. In selecting proper guardian
of a minor, the paramount consideration
should be the welfare and well-being of
the child. In selecting a guardian, the
court
is
exercising
parens
patriae
jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary
comfort, contentment, health, education,
intellectual development and favourable
surroundings. But over and above physical
comforts, moral and ethical values cannot
be ignored. They are equally, or we may
say, even more important, essential and
indispensable considerations. If the minor
is old enough to form an intelligent
preference or judgment, the court must
consider such preference as well, though
the final decision should rest with the
court as to what is conducive to the
welfare
of
the
minor."
1 All. Vipin Kumar Vs. D.J. Gonda & Ors.
365

(22) On its perusal, it is well established
that in a habeas corpus petition, for custody of
the minor child, the considerable point was that
whether detention by parents or others is illegal
or without authority of law, wherein detention
of a minor by a person, who is not entitled to
his legal custody was held to be illegal
detention and was in regard to the claim setup
by a father of a girl child against sister of the
mother, who had died due to illness. The above
referred judgment is distinguishable and does
not
attract
to
the
present
facts
and
circumstances of the case.

(23) Here in the present case, the
grand mother who is aged about 72 years
is claiming custody of the minor child
from the biological mother, who is
managing affairs by running a beauty
parlour
to
provide
comfort,
health,
education and other developments of the
child required for future developments.

(24) In the opinion of the Court, the
custody of the child is in right hands and
does not require any interference in the
present habeas corpus petition.

(25) In view of the observation made
above, there is no merit in the present
habeas corpus petition and the same is
hereby dismissed.

(26) However, it is provided that in
case the grand mother of the minor child
Master Vaibhav Shukla wants to meet her
grand son, the respondent No.3 shall
permit and provide adequate atmosphere
to meet her grand son on 3rd Sunday of
every month and will not create any
hindrance in the meeting.
----------
(2020)1ILR 366

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 1540 of 2020

Vipin Kumar ...Petitioner
Versus
D.J. Gonda & Ors. ...Respondents

Counsel for the Petitioner:
Madan Gopal Tripathi, Amit Kumar Singh,
Atma Ram Verma

Counsel for the Respondents:

A. Code of Civil Procedure, 1908 - Order 6
Rule 17 - Additional Statement filed by
Respondent no.1 after filing of joint
Written statement of Respondent no.1
and 2 -due to changed circumstancesaccepted by the Civil Judge-order of Civil
Judge challenged-An application u/order
6 Rule 17 can be moved at any stage of
proceedings-to bring evidences which
were not within the knowledge of the
parties-when pleadings were filed.

Held, it is clearly borne out that application
under Order 6 Rule 17 CPC can be moved at
any stage of the proceedings, only such
evidence can be brought on record which are
not within the knowledge of the parties at the
time when the pleadings were filed. (Para 14)

Writ Petition dismissed. (E-9)

Cases cited: -

1. Estralla Rubber Vs. Dass Estate (P) Ltd,
(2001) 8 Supreme Court Cases 97

(Delivered by Hon'ble Alok Mathur, J.)

1. At the very outset learned counsel
for the petitioner prays for deletion of
respondents No.1 and 2. The prayer is
allowed and the parties are renumbered