# Master Vedant Mishra through his father Amritanshu Mishra v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** Habeas Corpus Writ Petition No. 137 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-vedant-mishra-through-his-father-amritanshu-mishra-v-state-of-u-p-ors-49354
- **Pages:** 4

## Headnote

A. Criminal Law -Constitution of India, 1950Article 226 - Indian Penal Code, 1860-Sections
498A & 304-B I.P.C. - 3/4 Dowry Prohibition Act,
1961- Hindu Minority & Guardianship Act, 1956Section 6- the father who is claiming custody is
named as an accused in a criminal case relating
to the death of the mother of the corpus-t
deponent is facing trial for the murder of his
wife cannot be ignored, which is one of the
major factors to be considered and which goes
against him- the detenu is residing since his
birth with his maternal uncle and maternal
grandparent, he is pursuing his education there
and present petition has been filed in the year
2022, after five years from birth of the detenu
and the delay and laches having not been
explained at all, as also considering the overall
interest and welfare of the detenu, in peculiar
facts of this case, issue a writ of habeas corpus
in favour of the petitioner will not be
proper.(Para 1 to 9)

B. One of the matters which is required to be
considered by a Court of law is the `character'
of the proposed guardian. considering the facts
and circumstances of the case where the father
was facing the charge under Section 498-A,
304-B IPC, the court did not grant custody of
minor child to the father and allowed him to
remain with maternal uncle and maternal
grandparents. Thus, a complaint against father
alleging and attributing death of mother and a
case under Section 498A IPC is indeed a
relevant factor and a Court of law must address
to the said circumstance while deciding the
custody of the minor in favour of such person.
(Para 6)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

448 INDIAN LAW REPORTS ALLAHABAD SERIES
children and parents, besides a brother.
Looking to the deceased's age, to think that
he would not have any income is, in our
considered opinion, a conclusion which no
reasonable person can draw. We do not wish to
say anything more on this issue, considering the
fact that we propose to set aside the impugned
award and remit the claim to the Tribunal now
competent for a de novo inquiry/trial.

50. In the result, this appeal succeeds and
shall stand allowed in part. The impugned
judgment and award passed by the Motor
Accident Claim Tribunal, Etawah is set aside,
with a remit of the matter to the Motor Accident
Claims Tribunal, Etawah, now competent under
the law to inquire into the claim. Motor Accident
Claim Petition No. 127 of 1997 shall, therefore, stand
restored to the file of the competent Tribunal, which
shall inquire into the claim, taking all such evidence
as may be necessary to effectively determine the
claimants' entitlement to compensation, if any. The
evidence already on record too shall be considered.
The claim petition shall be heard and decided within
a period of six months of the date of receipt of a
certified copy of this judgment, in accordance with
law, bearing in mind the guidance here.

51. There shall be no order as to costs.
----------
(2023) 11 ILRA 448
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.11.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 137 of 2022

Master Vedant Mishra through his father
Amritanshu Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anand Dubey

Counsel for the Respondents:
G.A., Anuj Pandey

A. Criminal Law -Constitution of India, 1950Article 226 - Indian Penal Code, 1860-Sections
498A & 304-B I.P.C. - 3/4 Dowry Prohibition Act,
1961- Hindu Minority & Guardianship Act, 1956Section 6- the father who is claiming custody is
named as an accused in a criminal case relating
to the death of the mother of the corpus-t
deponent is facing trial for the murder of his
wife cannot be ignored, which is one of the
major factors to be considered and which goes
against him- the detenu is residing since his
birth with his maternal uncle and maternal
grandparent, he is pursuing his education there
and present petition has been filed in the year
2022, after five years from birth of the detenu
and the delay and laches having not been
explained at all, as also considering the overall
interest and welfare of the detenu, in peculiar
facts of this case, issue a writ of habeas corpus
in favour of the petitioner will not be
proper.(Para 1 to 9)

B. One of the matters which is required to be
considered by a Court of law is the `character'
of the proposed guardian. considering the facts
and circumstances of the case where the father
was facing the charge under Section 498-A,
304-B IPC, the court did not grant custody of
minor child to the father and allowed him to
remain with maternal uncle and maternal
grandparents. Thus, a complaint against father
alleging and attributing death of mother and a
case under Section 498A IPC is indeed a
relevant factor and a Court of law must address
to the said circumstance while deciding the
custody of the minor in favour of such person.
(Para 6)

The writ petition is dismissed. (E-6)

List of Cases cited:

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

2. Reshu @ Nitya & ors. Vs St. of U.P. & ors.
(2021)
6
ALJ
632
11 All. Master Vedant Mishra through his father Amritanshu Mishra Vs. State of U.P. & Ors.
449
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition seeks issuance of a
writ in the nature of Habeas Corpus
commanding
the
opposite
parties
to
produce the corpus of detenu in Court and
give
him
in
the
custody
of
the
deponent/father Amritanshu Mishra.

2. Heard learned counsel for the
petitioner
and
learned
Additional
Government Advocate as also learned
counsel for respondents 4 to 6.

3. Learned counsel for the petitioner
submits that the marriage of father of the
detenu was solemnised on 22.4.2015 with
the deceased Rani Shukla. The petitioner
was blessed with one boy, i.e. detenu on
1.2.2017 out of wedlock. The mother of the
detenu was in extra marital affair with one
Sonu Ranjan, due to which frequent quarrel
occurred between the duo. The mother of
the detenu committed suicide on 9.8.2020
under impulse and anger as the father of the
detenu
asked
her
to
stop
having
relationship with Sonu Ranjan.

After death of mother of the detenu,
first information report was registered
against his father, bearing case crime
No.331 of 2020 under sections 498A, 304B I.P.C. and 3/4 Dowry Prohibition Act.
The father of the detenu was enlarged on
bail by this Court vide order dated
4.3.2022. It is alleged that after death of
mother of the detenu, respondents 4 to 6
have taken undue advantage and taken over
unlawful custody of the detenu The father
of the detenu went to respondents 4 to 6 for
custody of his son detenu but they refused
to give his custody to the deponent.

It is submitted on behalf of the
petitioner that as per Section 6 of Hindu
Minority and Guardianship Act, 1956,
father is the natural guardian of child and is
entitled to have the custody of the detenu.
Relying on the judgment in Nil Ratan
Kundu and another versus Abhijit
Kundu (2008)9 SCC 413 (particularly
paras 57, 58, 63, 65, 66, 67), it is submitted
that the character of the proposed guardian
is required to be considered to determine
suitability of the father to have custody of
the minor child.

It is submitted that there is no case law
to the effect that the proposed guardian be
denied custody of the child only on the
ground of pending criminal trial against
him. Welfare of the child has to be the top
consideration while deciding the custody of
the child.

It is also submitted that even from
perusal of the statement of prosecution
witnesses, it is clear that the deceased
committed suicide.

4. Per contra, learned A.G.A. and
learned counsel for the complainant have
opposed the prayer.

It has been submitted on behalf of
respondents 4 to 6 that on 9th August,
2020, mother of the detenu was murdered
by the deponent who is father of the detenu,
relating to demand of dowry. He is accused
in first information report No.331 of 2020
under sections 498A, 304-B I.P.C. and 3/4
Dowry Prohibition Act, P.S. Raunahi,
district Faizabad. Charge sheet has been
submitted and the accused is facing
criminal trial.

It is submitted that since his birth, the
child is living safely with his maternal
parents without any pressure and is
pursuing his studies. It is further submitted
that the deponent who is an accused of
murder of mother of the detenu cannot be
450 INDIAN LAW REPORTS ALLAHABAD SERIES
given custody of the child as such custody
would not only emotionally devastate and
destruct proper growth of the detenu- both
physical and mental, but also his overall
welfare will be compromised.

Learned counsel for respondents 4 to 6
has also relied on Nil Ratan Kundu's case.
It is submitted that pendency of the
criminal case where father is charged of
causing murder of minor's mother is
relevant factor and is required to be
considered before an appropriate order
could be passed.

5. It is not disputed between the
parties that mother of the detenu died on
9.8.2020. It is also not disputed that a first
information report No.331 of 2020 under
sections 498A, 304-B I.P.C. and 3/4 Dowry
Prohibition Act is registered and after filing
of charge sheet, the accused deponent is
facing criminal trial. It is further not
disputed that since birth, the detenu is
residing with his maternal uncle and
maternal grandparents. This Court in order
to assess the wish of the detenu who is
about six years of age called upon him in
chamber. On a query being made, the
detenu immediately expressed his will for
staying with respondents 4 to 6. The detenu
appears to be a bright and intelligent boy.

6. As regards submission of learned
counsel for the petitioner that mere
pendency of a criminal trial will not disentitle the deponent in seeking custody of
the child, it will be apt to refer to the
judgment in Nil Ratan Kundu's case
(supra). Relevant paras 63, 64 and 66 are
extracted below :

" 63. In our considered opinion, on the
facts and in the circumstances of the case,
both the Courts were duty bound to
consider
the
allegations
against
the
respondent
herein
and
pendency
of
criminal case for an offence punishable
under Section 498A IPC. One of the
matters which is required to be considered
by a Court of law is the `character' of the
proposed guardian. In Kirit Kumar, this
Court, almost in similar circumstances
where the father was facing the charge
under Section 498-A IPC, did not grant
custody of two minor children to the
father and allowed them to remain with
maternal uncle.

64.Thus, a complaint against father
alleging and attributing death of mother
and a case under Section 498A IPC is
indeed a relevant factor and a Court of
law must address to the said circumstance
while deciding the custody of the minor in
favour of such person. To us, it is no
answer to state that in case the father is
convicted, it is open to maternal grand
parents to make an appropriate application
for change of custody. Even at this stage,
the said fact ought to have been considered
and appropriate order ought to have been
passed.

66. In our considered opinion, the
Court was not right. Apart from statutory
provision in the form of sub-section (3) of
Section 17 of 1890 Act, such examination
also helps the Court in performing onerous
duty, in exercising discretionary jurisdiction
and in deciding delicate issue of custody of a
tender-aged child. Moreover, the final decision
rests with the Court which is bound to consider all
questions and to make an appropriate order
keeping in view the welfare of the child. Normally,
therefore, in custody cases, wishes of the minor
should be ascertained by the Court before
deciding as to whom custody should be given."

(Emphasised)

A perusal of the judgment in Nil Ratan
Kundu's case (supra), it is evident that
pendency of a criminal case is definitely
11 All. Vedant through his father Vishnu Kumar @ Vishnu Kumar Ayodhyavasi Vs. State
 of U.P. & Ors.
451
one of the considerations for assessing the
character of the proposed guardian. It is
true that evidence is yet to be led and the
trial is yet to conclude and unless the
accused is convicted, no aspersions can be
cast. However, considering the ratio of the
judgment in Nil Ratan's case (supra), the
fact that the deponent is facing trial for the
murder of his wife cannot be ignored,
which is one of the major factors to be
considered and which goes against him.
This Court has taken note of the fact that
the child since his birth, i.e. almost six
years is residing with respondents 4 to 6
and is pursuing his studies.

7.A coordinate Bench of this Court in
Reshu alias Nitya and others versus State
of U.P. and others (2021)6 ALJ 632 while
considering the similar allegations and also
considering the judgment in Nil Ratan
Kuundu's case (supra) in detail has held as
under in para 58 :

"58. The aforementioned facts do not
indicate that the custody of the minor with
the respondent no. 4 can in any manner be
said to amount to an illegal and improper
detention. The child from her infancy, when
she was of a tender age, appears to be
living with her maternal grand-father. This
together with the fact that the father who is
claiming custody is named as an accused in
a criminal case relating to the death of the
mother of the corpus, would also be a
relevant factor. The other considerations
which would have a material bearing
would be the necessity of the child being
provided loving and understanding care,
guidance and a warm and compassionate
relationship in a pleasant home, which are
essential for the development to the child's
character and personality."

8.Thus, keeping in view the law laid
down by Supreme Court in the case of Nil
Ratan Kundu, the fact that the deponent is
facing trial for the murder of mother of the
detenu, the detenu is residing since his birth
with his maternal uncle and maternal grand
parent, he is pursuing his education there
and present petition has been filed in the
year 2022, after five years from birth of the
detenu and the delay and laches having not
been explained at all, as also considering
the overall interest and welfare of the
detenu, in peculiar facts of this case, I am
not inclined to issue a writ of habeas corpus
in favour of the petitioner.

9.The petition fails and is accordingly
dismissed. However, the deponent shall
have the visiting rights of the detenu.
Accordingly,
the
deponent
shall
be
permitted to visit the detenu on every first
and third Sunday between 10.00a.m and
5.00p.m.
----------
(2023) 11 ILRA 451
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.11.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 26085of 2021

Vedant through his father Vishnu Kumar @
Vishnu Kumar Ayodhyavasi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ramakar Shukla, Ravindra Gupta

Counsel for the Respondents:
G.A., Abhshek Misra, Anand Dubey, Firoz Ahmad
Khan, Gajendra Singh Chauhan, Saurabh Verma

A. Criminal Law - Constitution of India,1950Article 226 -Indian Penal Code,1860-Sections
498A, 304 B, 506 I.P.C. - sections 3/4 Dowry
Prohibition Act-First Information Report was
registered against the deponent and against his
family members after two years from the death