# Mirah Pandey v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 159
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-09
- **Case number:** Habeas Corpus Writ Petition No. 67 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mirah-pandey-v-state-of-u-p-ors-50441
- **Pages:** 14

## Headnote

The Constitution of India, 1950-Article226- Habeas Corpus- While deciding the
matter of custody of children, primary and
paramount consideration is welfare of the
children
so
demands
then
technical
objections cannot come in the way.
However, while deciding the welfare of
the children it is not the view of one
spouse alone which has to be taken into
consideration. The courts should decide
the issue of custody only on the basis of
what is in the best interest of the children.
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 way 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- In the
interest of Justice as the welfare love
affection company protection is in the
custody of the father-Visitation rights
granted to mother- Petitioner is at liberty
to approach the appropriate forum for
claiming the custody of the children under
the Hindu Minority and Guards Act 1956 or
under the Guardians and Wards Act,
1890.(Para 19, 27 & 28) (E-15)

List of Cases cited:

## Text

_Characters 0–39,784 of 47,625. This is a partial read: ask again with offset=39784 for what follows._

6 All. Mirah Pandey Vs. State of U.P. & Ors.
159

3. In the light of the submission made
by
the
counsel
for
the
appellantsapplicants, the following correction is
being made in the order dated 1.3.2023:-

4. "In the sixth line of first paragraph
of the order, in place of Rs.4,34,000/- it
shall be read as Rs.66,000/-.

5. The income of the deceased can be
considered to be Rs.1500/- per month i.e.
Rs.18,000/- per annum, 40% will have to
be added towards future loss of income,
deducted 1/2 towards personal expenses
of the deceased, granted multiplier of 18
and granted Rs.30,000/- towards non
pecuniary damages. Hence the total
amount of compensation in view of above
discussion is being recalculated herein
below:-

(i) Annual Income : Rs.18,000/-
Per annum (Rs.1,500 X 12)

(ii) Percentage towards future
prospects 40% : Rs. 7,200/-

(iii) Total income : Rs. 18,000/- +
Rs.7,200/- = Rs. 25,200/-

(iv) Income after deduction 1/2 :
Rs.25,200/- ? Rs12,600/- = Rs.12,600/-

(v) Multiplier applicable : 18

(vi) Loss of Dependency : Rs.
12,600/- X 18 = Rs.2,26,800/-

(vii) Amount under non pecuniary
head : Rs. 30,000/-

(viii)
Total
compensation
:
Rs.2,26,800/-
+
Rs.30,000/-
=
Rs.2,56,800/-

6. In view of above, the correction
application is allowed.
----------
(2023) 6 ILRA 159
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.06.2023
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 67 of 2023

Mirah Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manushresth Misra, Sushil Kumar Singh

Counsel for the Respondents:
G.A., Manoj Kumar Misra

The Constitution of India, 1950-Article226- Habeas Corpus- While deciding the
matter of custody of children, primary and
paramount consideration is welfare of the
children
so
demands
then
technical
objections cannot come in the way.
However, while deciding the welfare of
the children it is not the view of one
spouse alone which has to be taken into
consideration. The courts should decide
the issue of custody only on the basis of
what is in the best interest of the children.
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 way 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- In the
interest of Justice as the welfare love
affection company protection is in the
custody of the father-Visitation rights
granted to mother- Petitioner is at liberty
to approach the appropriate forum for
claiming the custody of the children under
the Hindu Minority and Guards Act 1956 or
under the Guardians and Wards Act,
1890.(Para 19, 27 & 28) (E-15)

List of Cases cited:

1. Nithya Anand Raghvan v St. (NCT of Delhi) &
anr.2017 8 SCC 454
160 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Dhanwanti Joshi Vs Madhav Unde ( 1998) 1
SCC 112

3. Shradha Kannaujia (Minor) & anr.,Vs St. of
U.P. & ors. in Habeas Corpus No. 716 of 2020

4. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors. Criminal Appeal No. 838 of
2019 order dated 06.05.2019

5. Master Manan @ Arush Vs St. of U.P & ors.,
decided on 18.02.2021

6. Vahin Saxena ( Minor Corpus) & anr. Vs St. of
U.P. & ors. decided on 27-08-2021

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Shubham Aggarwal along
with Ms. Suksham Aggarwal and Sushil
Kumar Singh, the learned counsel for the
petitioner-Smt Ira Sharma as well as Smt.
Kiran Singh and Prem Prakash, the learned
Additional Government Advocate-I for the
State-respondent Nos. 1 to 3 and Sri Manoj
Kumar Misra, learned counsel for the
respondent No.4 and pleadings between the
parties have already been exchanged.

2. The petitioner-Ira Sharma has filed
this Habeas Corpus petition with the
following reliefs:

"i) to issue a writ, order or
direction in the nature of Habeas Corpus
commanding the respondents to produce the
corpus of detenues, namely Rayan Pandey
and Mirah Pandey at the earliest before this
Hon'ble Court and to handover the custody
of the said minor children to petitioner being
their mother.

ii) to issue directions to the
respondent no.4 through respondent No.1 and
2 for making necessary provisions for
interaction and conversations between the
petitioner/mother and the minor children
immediately and during pendency of the
present writ petition by mode of voice and
video calls.

iii) to issue any other order or
direction which this Hon'ble Court may deem
fit and proper under the facts and
circumstances of the case in favour of the
petitioner in the interest of justice.

iv) Allow the writ petition with
costs."

3. This Court on 20.04.2023 had passed
the following order:

"Sri
Manoj
Kumar
Misra,
Advocate has filed his Vakalatnama today in
Court on behalf of opposite party No.4. The
same is taken on record.

In compliance of order dated
02.03.2023 opposite party No.4-Dhreerendra
Pandey @ Dheerendra Vikram Pandey along
with detenues, namely, Mirah Pandeydaughter and Rayan Pandey-son is present
before this Court in person accompanied by
Sub Inspector Sri Rajneesh Dwivedi and lady
constable Ms. Archana Yadav, Police Station
Kotwali Nagar, District Gonda.

Smt Ira Sharma, petitioner is also
present before this Court in person. She has
been identified by her counsel Mr. Shubham
Aggarwal.

Heard Shri Shubham Aggarwal
alongwith Ms. Suksham Aggarwal, the
learned counsel for the petitioner-Smt Ira
Sharma as well as Sri Manoj Singh and
Prem Prakash, the learned A.G.A.-I for the
State and Sri Manoj Kumar Misra, learned
counsel for the opposite party No.4.

Learned counsel for the opposite
party No.4 has filed counter affidavit today
in Court after serving the copy of the same
to learned counsel for the petitioner. The
same is taken on record.

Learned counsel for the petitioner
prays for and is allowed four days time to
file rejoinder affidavit.
6 All. Mirah Pandey Vs. State of U.P. & Ors.
161

Smt
Ira
Sharma,
petitioner
submits that she is staying in India till 2nd
may, 2023. She further prays that she may
be given at least one hour time in the
evening between 6.00 p.m. to 7.00 p.m. to
meet her children, during her stay in India
and she wants to talk to her children on
mobile and on video call.

Mr.
Dhreerendra
Pandey
@
Dheerendra Vikram Pandey-opposite party
No.4 has no objection to the request made
by the petitioner-Smt Ira Sharma.

As prayed, Smt Ira Sharma,
petitioner is permitted to meet her children
in the evening between 6.00 p.m. to 7.00
p.m.during her stay in India up to
02.05.2023 at the current residence of
opposite party No.4 i.e. Omax R-2,
Building 15, Flat 1104, Lucknow and she is
also permitted to talk to her children for ten
minutes in the evening on mobile and on
video call, but not after 9.00 p.m.

It is made clear that during visit
of Smt Ira Sharma at the residence of
opposite party No.4 and during mobile call,
Mr. Dhreerendra Pandey @ Dheerendra
Vikram Pandey-opposite party No.4 will
not create any hindrance.

Put up this case on 27.04.2023
for further hearing before this Court.

On the next date fixed, Mr.
Dhreerendra
Pandey
@
Dheerendra
Vikram Pandey,opposite party No.4 and
Smt. Ira Sharma, petitioner shall again
appear in person before this Court but
detenues, namely, Mirah Pandey-daughter
and Rayan Pandey-son need not to appear
unless called for and their custody during
that period shall remain with their father
Mr. Dhreerendra Pandey @ Dheerendra
Vikram Pandey-opposite party No.4."

4. On 27.04.2023 this Court had
passed the following order:

"In compliance of order dated
20.04.2023
opposite
party
No.4Dhreerendra
Pandey
@
Dheerendra
Vikram Pandey and petitioner-Smt Ira
Sharma are present before this Court in
person and they have been identified by
their respective counsels.

Pleadings between the parties
have been exchanged. The case is being
heard finally today.

Heard Sri Shubham Aggarwal
along with Ms. Suksham Aggarwal and
Sushil Kumar Singh, the learned counsel
for the petitioner-Smt Ira Sharma as well
as Smt. Kiran Singh and Prem Prakash, the
learned Additional Government Advocate-I
for opposite party Nos. 1 to 3 and Sri
Manoj Kumar Misra, learned counsel for
the
opposite
party
No.4-Dhreerendra
Pandey @ Dheerendra Vikram Pandey.

Judgment reserved.

Till the pronouncement of the
judgment, interim arrangement made by
this Court vide order dated 20.04.2023
shall continue. It is further provided that
petitioner-Ira Shama, if she is in abroad,
she is allowed to have conversation with
her children Mirah Pandey-daughter and
Rayan Pandey-son by mobile phone, whats
app call or video call during 8.00 p.m to
8.30 p.m. as per Indian Standard Time. "

5. Learned counsel for the petitioner
submits that the petitioner-Ira Sharma got
married to respondent No.4-Dheerendra
Pandey @ Dheerendra Vikram Pandey at
Dharamshala,
Himanchal
Pradesh
on
15.02.2008 as per Hindu Rites and
Ceremonies.
Thereafter,
the
couple
relocated to U.S.A. for their bright future.
After shifting to U.S.A., due to their
wedlock two children, one male child
namely Master Rayan Pandey born on
02.10.2013 and one female child namely
Mirah Pandey born on 03.04.2018 and
162 INDIAN LAW REPORTS ALLAHABAD SERIES
were having American Passport and it was
further submitted that after the second child
was born the relationship between the
husband and wife started to turn more
absurd and regular dispute arose.

Thereafter, the petitioner and
respondent No.4 entered into an amicable
settlement through a document titled as
"Matrimonial
Settlement
Agreement"
(hereinafter referred to as "M.S.A.") on
02.06.2022.
After
entering
into
a
settlement, the petitioner and respondent
No.4 approached family court and got
divorce by mutual consent by the court of
competent
jurisdiction
at
U.S.A.
i.e.
Superior Court of New Jersey Chancery
Division: Family Part Somerset Country
vide Docket No. FM-18-267-22. True copy
of the Matrimonial Settlement Agreement
and Decree of Divorce as granted by the
Courts of the USA have been filed as
Annexure Nos. 3 and 4 to this habeas
corpus petition.

6. Learned counsel for the petitioner
further submits that the respondent No.4 is
running an IT Company in U.S.A. with his
brother and is earning in millions of U.S.
Dollars per annum but the petitioner did not
take a single penny as Alimony or any
amount
of
maintenance
from
the
respondent No4 at the time of divorce.

7. Learned counsel for the petitioner has
drawn attention of this Court towards Article
III of the M.S.A. and submits that the days
were fixed for the physical custody of the
children but the respondent No.4 kept the
petitioner in dark and on certain pretext took
the children from U.S.A. to India at his native
place, without obtaining consent of petitioner
for permanent relocation of children while
the children, being born and settled in USA
and having being attached to their mother and
they never wanted to come to India with the
respondent No.4. He further submits that
initially, respondent No.4 used to make the
children speak to the petitioner and allowed
petitioner to interact with her children, but,
later on he did not allow the children to talk
to petitioner over video call or even on phone
voice call for several weeks.

8. Learned counsel for the petitioner
further submits that after some time the
behavior of respondent No.4 turned very
abnormal and the petitioner came under
suspicion and started to feel very unsafe
regarding children.

9. Learned counsel for the petitioner
further submits that the son and daughter of
petitioner, namely Rayan Pandey and Mirah
Pandey, who are aged about 9 and 4 years
respectively at present are in illegal detention
of the respondent No.4-father against the
judgment of the Court of U.S.A. for which he
is not legally entitled as he is flouting the
orders of the Hon'ble Court of USA.

10. Learned counsel for the petitioner
further
submits
that
the
petitioner
approached Station House Office, Civil
Lines, Gonda and Superintendent of Police,
Gonda, U.P. and brought into their notice
about the entire incident, but they did not
conduct the investigation to locate the
whereabouts of the children of petitioner.
Learned counsel for the petitioner further
submits that the respondent No.4 has no
love and affection towards the children and
the petitioner being mother is legally
entitled to get the custody of her children
being natural guardian and she is earning
handsome figure and can take care.

11. Learned counsel for the petitioner
further prays for handing over the custody
of said minor children to petitioner who is
6 All. Mirah Pandey Vs. State of U.P. & Ors.
163
biological mother of minor children, so that
the children can be taken to United States
of America where they were born and the
present habeas corpus petition may be
allowed by this Hon'ble Court.

12. Per Contra, Sri Manoj Kumar
Misra, learned counsel for the respondent
No.4 filed counter affidavit, which is on
record and submits that the petitioner-Ira
Shama is a most irresponsible lady who
does not have any respect or love and care
for any relation nor for her husband and for
minor children. She has been sent to jail for
committing cruelty against the respondent
No.4. She is an alcoholic lady with very
short temperament. She used to even beat
her children. Even she is so self-centered
that she had left her son alone in America
when he was only five years old child and
came to India just for her career. Even she
left
her
very
young
daughter
at
Dharamshala, Himachal Pradesh to live
with her maternal grandmother and she
herself went to Bangalore in the name of
her work. However, from May, 2020 till
July, 2020 Ira Sharma-the petitioner stayed
at Dharamshala due to the Nationwide
lockdown and once again in August, 2020
she went to Banglore leaving her two years
old daughter at Dharamshala. He further
submits that when the children were
infected with Covid, her focus was on
finding a new job instead of the well-being
of the children. On top of that, even though
she was not working at that time, but she
started keeping Rayan Pandey-son in daycare (creche) for the entire day even tough
Covid was still at peak in the U.S. resulting
Rayan Pandey-son got sick several times
and once had to be hospitalized too. She
did not show any love and affection
towards the children. He further submits
that while signing the MSA, petitioner-Ira
Sharma
deliberately,
willfully
and
knowingly insisted to add a condition
which allows her to leave her children in
custody of respondent No.4 so that she will
be at liberty to move to any country in the
name of her profession. This fact, itself
shows that petitioner-Ira Sharma does not
have any love and affection towards her
children.

13. Sri Manoj Kumar Misra, learned
counsel for the respondent No.4 has placed
reliance on the Clause 10.1 of the Article X
of MSA to show the conduct of the wife
and the reason for divorce and the mental
cruelty cause to the husband, which is
being reproduced herein-below:

"10.1
Husband
filed
his
complaint for divorce under the causes of
action of extreme cruelty, adultery, and
irreconcilable
differences.
Upon
final
dissolution, Husband agrees to withdraw
his count of extreme cruelty and proceed
solely under the counts of adultery and
irreconcilable differences. Wife filed her
counterclaim for divorce under the causes
of action of irreconcilable differences and
extreme cruelty. Upon final dissolution,
Wife agrees to withdraw her count of
extreme cruelty and proceed under the
cause
of
action
of
irreconcilable
differences."

14. Learned counsel for the respondent
No.4 has also placed reliance on the decree
of divorce and submitted that in the decree
of divorce a finding has been recorded that
respondent No.4 has been able to prove the
charges of adultery against petitioner-Ira
Shama. The relevant extract of the decree
of divorce is being reproduced hereinbelow:

"This MATTER having come
before the Court for an uncontested
164 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing, and the plaintiff, Dheerendra
Pandey, having been represented by IIham
S. Rose, Esq, of Offit Kurman, P.A. and the
defendant,
Ira Sharma, having
been
represented by Taryn R. Zimmerman, Esq.
Of the De Tommaso Law Group, LLC, and
the parties having entered into a Marital
Settlement Agreement dated June 2, 2022,
and it appearing the plaintiff and defendant
were joined in the bond of matrimony of
February 15,2008, and each having proven
a cause of action of irreconcilable
differences, and no reasonable prospect of
reconciliation exists between them; along
with plaintiff proving a cause of action of
adultery and successfully serving the corespondent; and

IT FURTHER APPEARING that
at the time the within causes of action
arose, the plaintiff was a bona fide resident
of this State and has ever since and for
more than one year next preceding the
commencement of this action, continued to
be scuh a bona fide resident, and

IT FURTHER APPEARING that
jurisdiction herein has been acquired
pursuant to the Rules of Court; and

IT FURTHER APPEARING that
a certain Marital Settlement Agreement
dated June 2, 2022 was entered into
between the plaintiff and the defendant,
was submitted to this Court by counsel for
the parties and is annexed hereto, with no
testimony having been taken by the Court
as to the terms of said Agreement;

IT IS thereupon, on this 7th day of
June, 2022
by
the
Superior
Court,
Chancery Division, of the State of New
Jersey;

ORDERED AND ADJUDGED by
virtue of the power and authority of this
Court and of the acts of the Legislature in
such cases made and provided, that the
plaintiff, Dheerendra Pandey, and the
defendant, Ira Sharma, are hereby divorced
from the bonds of matrimony from each
other, for the causes aforesaid, and the said
parties and each of them be and same are
hereby freed and discharged from the
obligations thereof and the marriage
between the parties be and the same hereby
is dissolved; and

IT IS FURTHER ORDERED
AND
ADJUDGED
that
the
Marital
Settlement Agreement between the parties
hereto, a copy of which is attached hereto
but not merged herewith be and hereby is
permitted by this Court to be made a part
of and is incorporated in this Judgment
with the understanding that the Court took
no testimony upon and did not pass upon
the merits of said Agreement, except that
the Court has determined that both parties
have voluntarily executed the Agreement
and that each has accepted the terms
thereof as fair and equitable; and

IT IS FURTHER ORDERED
AND ADJUDGED that the parties have
adequately addressed the issue of the
standard of living and the likelihood of
maintaining a reasonably comparable
standard of living as required by Crews v.
Crews, 164 N.J. 11 (2000).

IT IS FURTHER ORDERED
AND ADJUDGED that the parties are
directed to comply with each and every
obligation to which they have subscribed in
the
aforementioned
written
Marital
Settlement Agreement; and

IT IS FURTHER ORDERED
AND ADJUDGED that the attorneys for
plaintiff and the attorneys for defendant be
and hereby are discharged as the attorney
of record after 45 days from the date of this
judgment; and

IT IS FURTHER ORDERED
AND ADJUDGED that all issues pleaded
and not resolved in the judgment are
deemed abandoned."
6 All. Mirah Pandey Vs. State of U.P. & Ors.
165

15. Sri Manoj Kumar Misra, learned
counsel for the respondent No.4 further
submits that petitioner-Ira Shama herself
consented to get both the children admitted
to some reputed school in India by e-mail
and she will keep on visiting India and
whenever she will be in India she will visit
her children at Lucknow, the place of stay
of respondent No.4 and it was under these
circumstances that respondent No.4 had got
both the children admitted in G.D. Goenka
Public School, Sector B Sushant Golf City,
Shaheed Path, Lucknow affiliated to CBSE
Board, New Delhi, where they are studying
in Class IV and I. The e-mail sent by
petitioner-Ira Sharma to respondent No.4Dheerendra Pandey is quoted herein-below:

"I will check with them again.
They have asked me to call tomorrow
morning.

Also, find attached my passport
copy and aadhar card. I am only providing
you for using it in school admission for
kids.

Best Regards,

Ira Sharma

Cell 201-560-7693"

Copy of the e-mails in which
petitioner-Ira Sharma herself had consented
for admission of the children in India and
the Admission Record of the children and
e-mails are annexed as Annexure No.CA-2
to the counter affidavit.

16. Learned counsel for the respondent
No.4 further submits that the respondent
No.4 does not have any objection if the
petitioner-Ira Sharma wishes to visit the
children in Lucknow during her stay in
India, provided the same does not hamper
their studies. He further submits that the
admission of both the children were done at
the aforesaid school with the consent of
mother-Ira Sharma. She has given copy of
her Aadhar Card and Passport by e-mail on
22.08.2022. Thus, it is not a case of any
illegal detention but the children are living
and studying with their father with the
consent of her mother.

17. Learned counsel for the respondent
No.4 further submits that in case of any
dispute as per Matrimonial Settlement
Agreement there is a Provision in Clause
3.11 of the agreement for Return to
Mediation, which is being reproduced
herein-below, thus this habeas corpus
petition is not maintainable.

"3.11 Return to Mediation: The
parties agree that if any differences arise
from this agreement, they will first attempt
to resolve these concerns amicably between
themselves. If the parties reach an impasse,
they agree that they will attempt to resolve
these
issues
through
mediation
and
understand that they may contact the
Somerset
Country
Family
Mediation
program before filing a motion for Court
intervention. The parties agree that either
of them may initiate this process by
contacting the mediator and scheduling a
session. Both parties agree to participate in
future mediation sessions with a good faith
effort at resolution."

18. Smt Kiran Singh and Sri Prem
Prakash,
learned
A.G.A-I
have
also
supported the argument advanced by
learned counsel for the respondent No.4.

19. After considering the arguments as
advanced by learned counsel for the parties
this Court finds that minor child should not
be deprived of the love and affection of
both the parents as deprivation results in a
grave
phycological
impact
upon
the
impressionable and innocent disposition of
a child in his formative years and in this
166 INDIAN LAW REPORTS ALLAHABAD SERIES
case the minor children are being deprived
of the love an affection of their parents and
the parents are not able to interact with
their children meaningfully. Whenever a
question arises before a court pertaining to
the custody of the minor child, the matter is
to be decided not on consideration of the
legal rights of the parties but on the sole
and predominant criterion of what would
best serve the interest and welfare of the
child. The primary object of a Habeas
Corpus petition, as applied to minor
children, is to determine in whose custody
the best interests of the child will probably
be advanced. Further the question of
custody cannot be determined by weighing
the
economic
circumstances
of
the
contending parties. The matter will not be
determined solely on the basis of the
physical comfort and material advantages
that may be available in the home of one
contender or the other. It is further held that
the welfare of the child must be decided on
a consideration including the general
psychological, spiritual and emotional
welfare of the child. While resolving the
disputes between the rival claimants for the
custody of a child, the aim of the Court
must be to choose the course which will
best provide for the healthy growth,
development and education of the child so
that he or she will be equipped to face the
problems of life as a mature adult.

20. In the present case it is not in
dispute that the petitioner-Ira Sharma got
married to respondent No.4-Dheerendra
Pandey @ Dheerendra Vikram Pandey at
Dharamshala,
Himanchal
Pradesh.
Thereafter, the couple relocated to U.S.A.
for their bright future. After shifting to
U.S.A., due to their wedlock two children,
one male child namely Master Rayan
Pandey born on 02.10.2013 and one female
child namely Mirah Pandey born on
03.04.2018 and were having American
Passport. After some time the relationship
between the husband and wife started to
turn absurd and regular dispute arose.
Thereafter, the petitioner and respondent
No.4 entered into an amicable settlement
through a document titled as Matrimonial
Settlement Agreement on 02.06.2022. After
entering into a settlement, the petitioner
and respondent No.4 approached family
court and got divorce by mutual consent by
the court of competent jurisdiction at
U.S.A. i.e. Superior Court of New Jersey
Chancery Division: Family Part Somerset
Country vide Docket No. FM-18-267-22.
and from perusal of the decree of divorce,
finding has been recorded that respondent
No.4 has been able to prove the charges of
adultery and irreconcilably differences
against the wife Ira Shama, thus this type of
situation gives a negative impact on the
psychological behavior of the minor
children and is also not in the welfare of the
children.

21. In the case of Nithya Anand
Raghvan v State (NCT of Delhi) and
another 2017 8 SCC 454, it was held by
Hon'ble Apex Court 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
para 44 to 47 in the judgement are being
reproduced herein below:

"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
6 All. Mirah Pandey Vs. State of U.P. & Ors.
167
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 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 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
168 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

Similarly,
in
the
case
of
Dhanwanti Joshi Vs Madhav Unde (
1998) 1 SCC 112, the Hon'ble Apex Court
was pleased to observe in para 27, 29, 30 of
the judgment as under:

"27........However, in view of the
fact that the child had lived with his mother
in India for nearly twelve years, this Court
held that it would not exercise a summary
jurisdiction to return the child to the United
States of America on the ground that its
removal from USA in 1984 was contrary to
the orders of US courts. It was also held
that whenever a question arises before a
court pertaining to the custody of a minor
child, the matter is to be decided not on
considerations of the legal rights of the
parties but on the sole and predominant
criterion of what would best serve the
interest of the minor." (emphasis supplied)
Again in paragraphs 29 and 30, the threejudge bench observed thus:-

"29. While dealing with a case of
custody of a child removed by a parent
from
one
country
to
another
in
contravention of the orders of the court
where the parties had set up their
matrimonial home, the court in the country
to which the child has been removed must
first consider the question whether the
court could conduct an elaborate enquiry
on the question of custody or by dealing
with the matter summarily order a parent to
return custody of the child to the country
from which the child was removed and all
aspects relating to the child's welfare be
investigated in a court in his own country.
Should the court take a view that an
elaborate enquiry is necessary, obviously
the court is bound to consider the welfare
and happiness of the child as the paramount
consideration and go into all relevant
aspects of welfare of the child including
stability
and
security,
loving
and
understanding care and guidance and full
Nithya Anand Raghavan vs State Of Nct Of
Delhi on 3 July, 2017 development of the
child's character, personality and talents.
While doing so, the order of a foreign court
as to his custody may be given due weight;
the weight and persuasive effect of a
foreign judgment must depend on the
circumstances of each case.

30. However, in a case where the
court decides to exercise its jurisdiction
summarily to return the child to his own
country, keeping in view the jurisdiction of
the court in the native country which has
the closest concern and the most intimate
contact with the issues arising in the case,
the court may leave the aspects relating to
the welfare of the child to be investigated
by the court in his own native country as
that could be in the best interests of the
child. The indication given in Mckee v.
McKee that there may be cases in which it
is proper for a court in one jurisdiction to
make an order directing that a child be
returned to a foreign jurisdiction without
investigating the merits of the dispute
relating to the care of the child on the
ground that such an order is in the best
interests of the child has been explained in
L (Minors), In re and the said view has
been approved by this Court in Dhanwanti
Joshi. Similar view taken by the Court of
Appeal in H. (Infants), in re has been
approved by this Court in Elizabeth
Dinshaw."

Similarly, in the case of Shradha
Kannaujia (Minor) and Another ,Vs
State of U.P. and 5 others in Habeas
Corpus No. 716 of 2020 a co-ordinate
6 All. Mirah Pandey Vs. State of U.P. & Ors.
169
Bench of this Hon'ble court was pleased to
observe as under:

"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 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."

22. In the present case petitioner-Ira
Sharma herself consented to get both the
children be admitted to some reputed
school in India by e-mail and she will keep
on visiting India and whenever she will be
in India she will visit her children at
Lucknow, the place of stay of respondent
No.4 and it was under these circumstances
that respondent No.4 had got both the
children be admitted in G.D. Goenka
Public School, Sector B Sushant Golf City,
Shaheed Path, Lucknow affiliated to CBSE
Board, New Delhi, where they are studying
in Class IV and I. It is not in dispute that
the admission of both the children was
done at the aforesaid school with the
consent of the mother Ira Sharma for this
reason she herself has provided her Aadhar
Card and Passport copy as per e-mail dated
22.08.2022 sent to the respondent No.4,
thus the case set up by the petitioner Ira
Sharma that the minor children are under
illegal detention of respondent No.4 have
no force and there appears force in the
argument of learned counsel for the
respondent No.4 that the present habeas
corpus writ petition is not maintainable as
the children are not under illegal custody of
the father and are studying in India with the
consent of the mother Ira Sharma and for
custody she may approach the correct
forum in accordance with law.

23. The question of maintainability of
a habeas corpus petition under Article 226
of the Constitution of India for custody of a
minor was examined by Hon'ble Apex
Court in the case of Tejaswini Gaud and
others vs. Shekhar Jagdish Prasad
Tewari and others Criminal Appeal No.
838 of 2019 order dated 06.05.2019 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
170 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

24. A co-ordinate Bench of this in
Master Manan @ Arush Vs State of U.P
& 8 others, decided on 18.02.2021 was
pleased to observe in para 16 and 17 as
under :

"16. In the present case, it is
undisputed that the child is with his father
since 22.8.2019 under his care and custody.
It is not the case of either party that the
child was forcibly taken away by the father
from the custody of the mother.