# Pankaj & Ors v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-20
- **Case number:** Habeas Corpus Writ Petition No. 828 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-ors-v-state-of-u-p-ors-46870
- **Pages:** 4

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 304-B - Dowry
Prohibition Act, 1961- Section 3/4 - Writ
of habeas corpus - Custody of a minor
child-
pendency
of
a
criminal
case,
wherein the father has been charged of
causing the death of the minor's mother -
is a relevant factor required to be
considered before an appropriate order
could be passed - prerogative writ of
habeas corpus, is in the nature of
extraordinary remedy - which may not be
used to examine the question of custody
of
a
child
except
where
in
the
circumstances of a particular case, it can
364 INDIAN LAW REPORTS ALLAHABAD SERIES
be held that the custody of the minor is
illegal or unlawful. (Para -7,9)

Petitioner nos. 2 and 3 (stated to be minor
children of petitioner no. 1 of age about 8 years
and 3 years, respectively) have been detained
by the respondent nos. 4 and 5 (maternal
grandparents of the minor children).

HELD: - Not been able to demonstrate as to
how, in the facts and circumstances of the
present case, the custody of the petitioner nos.
2 and 3 with their maternal grandparents can be
said to be illegal or unlawful so as to persuade
this
Court
to
exercise
its
extraordinary
prerogative jurisdiction for issuing a writ of
habeas corpus. Makes a prayer to withdraw the
petition and states that the other remedies
available to him under law with regard to the
custodial rights would be pursued. (Para -10,11)

Habeas Corpus petition dismissed. (E-6)

List of Cases cited: -

## Text

3 All. Pankaj & Ors. Vs. State of U.P. & Ors.
363
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."

24. It is therefore seen that in an
application seeking a writ of habeas
corpus for custody of a minor child, as is
the
case
herein,
the
principal
consideration for the court would be to
ascertain whether the custody of the child
can be said to be unlawful and illegal and
whether the welfare of the child requires
that the present custody should be
changed.

25. 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.

26. The aforementioned legal
position has been discussed in a recent
judgment of this Court in Rachhit
Pandey (minor) and another v State of
U.P. and 3 others11.

27. The facts of the present case do
not in any manner suggests that it is a
case of illegal custody and in view
thereof, the present petition seeking a
writ of habeas corpus would not be
entertainable.

28. As regards the claim for
custodial rights, it is always open to the
parties to avail the appropriate remedy
for the purpose before the proper forum.

29. The observations made hereinabove
are prima facie in nature and the same would
be without prejudice to the rights and
contentions of the parties which may be
agitated in appropriate proceedings.

30. The petition fails and is accordingly
dismissed.
----------
(2021)03ILR A363
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

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

Habeas Corpus Writ Petition No. 828 of 2020

Pankaj & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Phool Chandra

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 304-B - Dowry
Prohibition Act, 1961- Section 3/4 - Writ
of habeas corpus - Custody of a minor
child-
pendency
of
a
criminal
case,
wherein the father has been charged of
causing the death of the minor's mother -
is a relevant factor required to be
considered before an appropriate order
could be passed - prerogative writ of
habeas corpus, is in the nature of
extraordinary remedy - which may not be
used to examine the question of custody
of
a
child
except
where
in
the
circumstances of a particular case, it can
364 INDIAN LAW REPORTS ALLAHABAD SERIES
be held that the custody of the minor is
illegal or unlawful. (Para -7,9)

Petitioner nos. 2 and 3 (stated to be minor
children of petitioner no. 1 of age about 8 years
and 3 years, respectively) have been detained
by the respondent nos. 4 and 5 (maternal
grandparents of the minor children).

HELD: - Not been able to demonstrate as to
how, in the facts and circumstances of the
present case, the custody of the petitioner nos.
2 and 3 with their maternal grandparents can be
said to be illegal or unlawful so as to persuade
this
Court
to
exercise
its
extraordinary
prerogative jurisdiction for issuing a writ of
habeas corpus. Makes a prayer to withdraw the
petition and states that the other remedies
available to him under law with regard to the
custodial rights would be pursued. (Para -10,11)

Habeas Corpus petition dismissed. (E-6)

List of Cases cited: -

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

2.
Kirtikumar
Maheshankar
Joshi
Vs
Pradipkumar Karunashanker Joshi, (1992) 3SCC
573

3. Rachit Pandey (minor) & anr. Vs St. of U.P. &
3 ors., Habeas Corpus Writ Petition no. 193 of
2020

4. Nithya Anand Raghvan Vs State (NCT of
Delhi) & 4 anr., (2017) 8 SCC 454

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

6. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari 7 ors., (20190 7 SCC 42

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

1. Supplementary affidavit filed today
is taken on record.

2. Heard Sri Phool Chandra, learned
counsel for the petitioners and Sri Vinod
Kant,
learned
Additional
Advocate
General, appearing alongwith Ms. Akansha
Gaur, learned counsel for the State
respondents.

3. The present petition for a writ of
habeas corpus has been filed with an
assertion that petitioner nos. 2 and 3 (stated
to be minor children of petitioner no. 1 of
age about 8 years and 3 years, respectively)
have been detained by the respondent nos.
4 and 5 (maternal grandparents of the
minor children).

4. Learned Additional Advocate
General has pointed out that a copy of the
First Information Report, which has been
filed as S.A.-1 alongwith supplementary
affidavit, indicates that the same was
lodged on 28.8.2019 under Sections 498-A,
304-B IPC and Section 3/4 of the Dowry
Prohibition Act, 1961. In the said First
Information Report, the petitioner no. 1
herein, is named as the principal accused. It
is submitted that the First Information
Report is in respect of an incident relating
to the death of the wife of the petitioner no.
1 i.e. mother of the children, whose custody
is being sought.

5. Counsel for the petitioners has
admitted the fact that petitioner no. 1 was
sent to jail and thereafter, he was granted
bail.

6. Learned Additional Advocate
General submits that petitioner no. 1 being
the principal accused in the pending
criminal case, the prayer of the petitioner
no. 1 seeking custody of the minor children
may be detrimental to their interests.
3 All. Pankaj & Ors. Vs. State of U.P. & Ors.
365

7. In somewhat similar set of facts, in
the case of Nil Ratan Kundu and another
vs. Abhijit Kundu1, where the custody of
a minor was sought in the background of
the pendency of a criminal case under
Sections 498 and 304 I.P.C. against the
father charging him of causing the death of
a minor's mother, it was held that the
paramount consideration in such matters
would be the welfare of the child, and the
court,
exercising
'parens
patriae'
jurisdiction, must give due weightage to a
child's ordinary comfort, contentment,
health, education, intellectual development
and favourable surroundings as well as
physical comfort and moral values and the
character of the proposed guardian is also
required to be considered. It was held that
the pendency of a criminal case, wherein
the father has been charged of causing the
death of the minor's mother, was a relevant
factor required to be considered before an
appropriate order could be passed. It was
held as follows :-

"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
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...

.....

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 498-A IPC. One of
the matters which is required to be considered
by a court of law is the "character" of the
proposed guardian. In Kirtikumar, 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 the
father alleging and attributing the death of
mother, and a case under Section 498-A IPC
is indeed a relevant factor and a court of law
must address the said circumstance while
deciding the custody of the minor in favour
of such a person.

8. In an earlier decision in the case of
Kirtikumar
Maheshankar
Joshi
vs.
Pradipkumar Karunashanker Joshi2,
where in almost similar circumstances the
father was facing a charge under Section
498-A I.P.C., it was held that though the
father being a natural guardian, has a
preferential right to the custody of the
children, but in the facts and circumstances
of the case, it would not be in the interest of
children to hand over their custody to the
father.

9. In a recent decision in Rachit
Pandey (minor) and another vs. State of
366 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. and 3 others3 this Court after
referring
to
the
authoritative
pronouncements in the case of Nithya
Anand Raghvan vs. State (NCT of Delhi)
and another4, Sayed Saleemuddin vs.
Dr. Rukhsana and others5 and Tejaswini
Gaud and others vs. Shekhar Jagdish
Prasad Tewari and others6, has held that
in an application seeking a writ of habeas
corpus for custody of a minor child, the
principal consideration for the Court would
be to ascertain whether the custody of the
child can be said to be unlawful and illegal
and whether the welfare of the child
requires that the present custody should be
changed and the child should be handed
over in the care and custody of someone
else other than in whose custody the child
presently is. It was held that the pregorative
writ of habeas corpus, is in the nature of
extraordinary remedy, which may not be
used to examine the question of custody of
a child except where in the circumstances
of a particular case, it can be held that the
custody of the minor is illegal or unlawful.

10. Counsel for the petitioners has not
been able to demonstrate as to how, in the
facts and circumstances of the present case,
the custody of the petitioner nos. 2 and 3
with their maternal grandparents can be
said to be illegal or unlawful so as to
pursuade
this
Court
to
exercise
its
extraordinary prerogative jurisdiction for
issuing a writ of habeas corpus.

11. At this stage, learned counsel for
the petitioners makes a prayer to withdraw
the petition and states that the other
remedies available to him under law with
regard to the custodial rights would be
pursued.

12. The petition stands, accordingly,
dismissed.
----------
(2021)03ILR A366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 988 of 2019

Shiva & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manvendra Singh, Sri Mazhar Ullah, Sri
Shrawan Kumar Ojha

Counsel for the Respondents:
A.G.A., Ajay Kumar Srivastava

(A) Civil Law - Guardians and Wards Act,
1890 - Section 17 - Writ of habeas corpus
- Custody of minor child - minor's custody
between parents - whenever custody is to
be entrusted to a guardian, natural or
otherwise - welfare of the minor is of
paramount importance - Hindu Minority
and Guardianship Act, 1956 - Section 6(a)
- Natural guardians of a Hindu minor - in
the case of a boy or an unmarried girl - the
father,
and
after
him,
the
mother:
provided that the custody of a minor who
has not completed the age of five years
shall ordinarily be with the mother - issue
- about custody and not guardianship -
welfare
of
young
children
is
better
ensured by the mother's caring hand than
a father's equally concerned supervision.
(Para - 12,16,17)

Wife and her husband are an estranged couple -
two children - both minors - Both the children
currently stay with their father, along with their
grandmother and their father's brother -
mother says that the two children ought to stay
with her in order to secure their welfare better -
minors' father, their grandmother and their
uncle, resist this claim - It is this tussle over the