# Priyanshu (Minor) v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-02
- **Case number:** Habeas Corpus Writ Petition No. 429 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyanshu-minor-v-state-of-u-p-ors-47175
- **Pages:** 6

## Headnote

A. Constitution of India - Article 226 -
Writ - Habeas Corpus - Scope - Detention
- Jurisdictional fact - Habeas Corpus is a
prerogative writ and an extraordinary
remedy - It is writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause
being shown - Held, exercise of the
extraordinary jurisdiction for issuance of a
writ of habeas corpus would, therefore, be
seen to be dependent on the jurisdictional
fact where the applicant establishes a
prima facie case that the detention is
unlawful
-
It
is
only
where
the
jurisdictional
fact
is
established,
the
applicant becomes entitled to the writ as
of right. (Para 8 and 9)

B. Constitution of India - Article 226 -
Writ - Habeas Corpus - Issuance of -
When warranted - Matter relating to
custody of minor - Principle laid down -
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
somebody else other than in whose
custody
the
child
presently
is
-
Proceedings in the nature of habeas
corpus may not be used to examine the
8 All. Priyanshu (Minor) Vs. State of U.P. & Ors.
295
question of the custody of a child. (Para
13 and 14)

C. Constitution of India - Article 226 -
Hindu Marriage Act, 1955 - S. 26 - Writ -
Habeas Corpus - Scope of interference -
Alternative remedy - Custody of minor -
Subject matter relating to custody of
children during the pendency of the
proceedings under the HMA is governed in
terms of the provisions contained under
Section 26 - Proceedings under the HMA
being pending before the Family Court, it
is open to the parties to invoke the
jurisdiction of the court under Section 26
for seeking orders with regard to custody
of the minor. (Para 19 and 21)

Writ Petition dismissed. (E-1)

Cases relied on :-

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES
an order of detention under the National
Security Act should not ordinarily be
passed. We are inclined to agree with
counsel for the petitioner that the order of
detention in the circumstances is not
sustainable and is contrary to the well
settled principles indicated by this Court in
series of cases relating to preventive
detention. The impugned order, therefore,
has to be quashed."(emphasis supplied)

42. The aforesaid dictum of the Apex
Court in Ramesh Yadav vs District
Magistrate, Etah and others (Surpa) has
also been followed by the Apex Court in
Sama Aruna v State of Telangana and
another : (2018) 12 SCC 150.

43. Considering the aforesaid, we are
of the opinion that there was no material to
indicate that the petitioners/detenues had
any criminal history and it was only a
surmise based on no material or evidence
that the petitioners/detenues might have
been earlier involved in such an incident
and he may show such a repetitive
tendency, in case they will be released on
bail.

44. In view of the above, all the
above-captioned habeas corpus petitions
succeed and are allowed. The detention
order dated 14.08.2020 and impugned
consequential orders are quashed. The
detenues/petitioners
shall
be
released
forthwith unless wanted in connection with
some other criminal case.

45. No order as to costs.
----------
(2021)08ILR A294
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

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

Habeas Corpus Writ Petition No. 429 of 2021

Priyanshu (Minor) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Kumar

Counsel for the Respondents:
A.G.A.

A. Constitution of India - Article 226 -
Writ - Habeas Corpus - Scope - Detention
- Jurisdictional fact - Habeas Corpus is a
prerogative writ and an extraordinary
remedy - It is writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause
being shown - Held, exercise of the
extraordinary jurisdiction for issuance of a
writ of habeas corpus would, therefore, be
seen to be dependent on the jurisdictional
fact where the applicant establishes a
prima facie case that the detention is
unlawful
-
It
is
only
where
the
jurisdictional
fact
is
established,
the
applicant becomes entitled to the writ as
of right. (Para 8 and 9)

B. Constitution of India - Article 226 -
Writ - Habeas Corpus - Issuance of -
When warranted - Matter relating to
custody of minor - Principle laid down -
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
somebody else other than in whose
custody
the
child
presently
is
-
Proceedings in the nature of habeas
corpus may not be used to examine the
8 All. Priyanshu (Minor) Vs. State of U.P. & Ors.
295
question of the custody of a child. (Para
13 and 14)

C. Constitution of India - Article 226 -
Hindu Marriage Act, 1955 - S. 26 - Writ -
Habeas Corpus - Scope of interference -
Alternative remedy - Custody of minor -
Subject matter relating to custody of
children during the pendency of the
proceedings under the HMA is governed in
terms of the provisions contained under
Section 26 - Proceedings under the HMA
being pending before the Family Court, it
is open to the parties to invoke the
jurisdiction of the court under Section 26
for seeking orders with regard to custody
of the minor. (Para 19 and 21)

Writ Petition dismissed. (E-1)

Cases relied on :-
1. Mohammad Ikram Hussain Vs St. of U.P. &
ors., AIR 1964 SC 1625
2. Kanu Sanyal Vs D.M., Darjeeling, (1973) 2
SCC 674
3. Nithya Anand Raghvan Vs State (NCT of
Delhi) & anr., (2017) 8 SCC 454
4. Sayed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247
5. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42
6. Rachhit Pandey (Minor) & anr. Vs St. of U.P.&
3 ors., 2021 (2) ADJ 320
7. Master Manan @ Arush Vs St.of U.P. & ors.,
2021 (5) ADJ 317
8. Krishnakant Pandey (Corpus) & ors. Vs St. of
U.P. & ors., 2021 2 AWC 1053 All8
9. Gaurav Nagpal Vs Sumedha Nagpal, (2009) 1
SCC 42
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Jitendra Kumar, learned
counsel for the petitioner and Sri Sameer
Shankar, learned Additional Government
Advocate
appearing
for
the
Staterespondents.

2. The present petition has been filed on
behalf of petitioner (minor) through Jai Singh
who has asserted to be father of the minor.

3. Pleadings in the petition indicate that
soon after the birth of the petitioner (corpus),
on 17.02.2018, some dispute arose between
his father and mother (Respondent No.4) and
on 22.10.2020 when the petitioner was about
two years of age the Respondent No.4 left her
matrimonial home along with the minor
child. It is an admitted fact that the
Respondent No.4 has not returned to her
matrimonial home since then.

4. Learned Additional Government
Advocate on the basis of instructions submits
that the Respondent No.4 along with her
minor child is living separately and that some
litigation is pending between the parties
before the Family Court.

5. Learned counsel for the petitioner
submits that the matter which is pending
before the Family Court is under Section 13
of the Hindu Marriage Act, 1955 i.e.
proceedings for divorce. He states that the
only relief which is being sought in the
present proceedings is a claim related to
custody of the minor child.

6. The dispute between the parties,
which is sought to be agitated by means of
the
present
petition,
essentially
is,
regarding the custody of the minor child,
who is presently about three and a half
years of age (date of birth-17.02.2018).

7. In a petition seeking a writ of
habeas corpus in a matter relating to a
claim for custody of a child, the principal
296 INDIAN LAW REPORTS ALLAHABAD SERIES
issue
which
is
to
be
taken
into
consideration is as to whether from the
facts of the case, it can be stated that the
custody of the child is illegal.

8. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is writ of right and not a writ of
course and may be granted only on
reasonable ground or probable cause being
shown, as held in Mohammad Ikram
Hussain vs. State of U.P. and others1 and
Kanu Sanyal vs. District Magistrate
Darjeeling2.

9. The exercise of the extraordinary
jurisdiction for issuance of a writ of habeas
corpus would, therefore, be seen to be
dependent on the jurisdictional fact where
the applicant establishes a prima facie case
that the detention is unlawful. It is only
where the aforementioned jurisdictional
fact is established that the applicant
becomes entitled to the writ as of right.

10. The object and scope of a writ of
habeas corpus in the context of a claim
relating to custody of a minor child fell for
consideration in Nithya Anand Raghvan
Vs. State (NCT of Delhi) and another3,
and it was held that the principal duty of
the court in such matters is to ascertain
whether the custody of the child is unlawful
and illegal and whether the welfare of the
child requires that his present custody
should be changed and the child be handed
over to the care and custody of any other
person.

11. Taking a similar view in the case
of Sayed Saleemuddin vs. Dr. Rukhsana
and others4, it was held that in a habeas
corpus petition seeking transfer of custody
of a child from one parent to the other, the
principal consideration for the court would
be to ascertain whether the custody of the
child can be said to be unlawful or illegal
and whether the welfare of the child
requires that the present custody should be
changed. It was stated thus:-

"11. ...it is clear that in an
application seeking a writ of Habeas
Corpus for custody of minor children the
principal consideration for the Court is to
ascertain whether the custody of the
children can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in care and custody of somebody
else. The principle is well settled that in a
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court..."

12. The question of maintainability of
a habeas corpus petition under Article 226
of the Constitution of India for custody of a
minor was examined in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad
Tewari and others5, and it was held that
the petition would be maintainable where
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
8 All. Priyanshu (Minor) Vs. State of U.P. & Ors.
297
deprived of it. The detention of a minor by
a person who is not entitled to his legal
custody is treated as equivalent to illegal
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

x x x

19. Habeas corpus proceedings is
not to justify or examine the legality of the
custody. Habeas corpus proceedings is a
medium through which the custody of the
child is addressed to the discretion of the
court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the
writ is issued where in the circumstances of
the
particular
case,
ordinary
remedy
provided by the law is either not available
or is ineffective; otherwise a writ will not
be issued. In child custody matters, the
power of the High Court in granting the
writ is qualified only in cases where the
detention of a minor by a person who is not
entitled to his legal custody. In view of the
pronouncement on the issue in question by
the Supreme Court and the High Courts, in
our view, in child custody matters, the writ
of habeas corpus is maintainable where it is
proved that the detention of a minor child
by a parent or others was illegal and
without any authority of law.

20. In child custody matters, the
ordinary remedy lies only under the Hindu
Minority and Guardianship Act or the
Guardians and Wards Act as the case may
be. In cases arising out of the proceedings
under the Guardians and Wards Act, the
jurisdiction of the court is determined by
whether the minor ordinarily resides within
the area on which the court exercises such
jurisdiction.
There
are
significant
differences between the enquiry under the
Guardians and Wards Act and the exercise
of powers by a writ court which is of
summary in nature. What is important is
the welfare of the child. In the writ court,
rights are determined only on the basis of
affidavits. Where the court is of the view
that a detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court. It is only in
exceptional cases, the rights of the parties
to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus."

13. 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 and the
child should be handed over in the care and
custody of somebody else other than in
whose custody the child presently is.

14. Proceedings in the nature of habeas
corpus may not be used to examine the
question of the custody of a child. The
prerogative writ of habeas corpus, is in the
nature of extraordinary remedy, and the writ
is issued, where in the circumstances of a
particular case, the ordinary remedy provided
under law is either not available or is
ineffective. The power of the High Court, in
granting a writ, in child custody matters, may
be invoked only in cases where the detention
of a minor is by a person who is not entitled
to his/her legal custody.

15. In a case where facts are disputed
and a detailed inquiry is required, the court
298 INDIAN LAW REPORTS ALLAHABAD SERIES
may decline to exercise its extraordinary
jurisdiction and may direct the parties to
approach
the
appropriate
court.
The
aforementioned legal position has been
considered in a recent judgement of this
Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others6,
Master Manan @ Arush Vs. State of
U.P. and others7 and Krishnakant
Pandey (Corpus) and others Vs. State of
U.P. and others8.

16. In the present case, it has been
pointed out that the date of birth of the child
is 17.02.2018, and in terms of the provisions
under Section 6 (a) of the Hindu Minority
and Guardianship Act, 19569 the custody of a
minor who has not completed the age of five
years is to be ordinarily with the mother, and
in view thereof the custody of the petitioner
(minor son) with the respondent no.4
(mother) prima facie cannot be said to be
illegal.

17. It is undisputed that the minor child
is with his mother since 22.10.2020 under her
custody. The submissions of the counsel for
the parties indicate the existence of a dispute
between the parties and also pendency of
proceedings for divorce under Section 13 of
the Hindu Marriage Act, 195510.

18. A writ of habeas corpus, as has been
consistently held, though a writ of right is not
to be issued as a matter of course, particularly
when the writ is sought against a parent for
the custody of a child.

19. The subject matter relating to
custody of children during the pendency of
the proceedings under the HMA is
governed in terms of the provisions
contained under Section 26 thereof. The
aforesaid
section
applies
to
"any
proceeding" under the HMA and it gives
the power to the court to make provisions
in regard to: (i) custody, (ii) maintenance,
and (iii) education of minor children. For
this purpose the court may make such
provisions in the decree as it may deem just
and proper and it may also pass interim
orders
during
the
pendency
of
the
proceedings and all such orders even after
passing of the decree.

20. The provisions under Section 26
of the HMA were considered in Gaurav
Nagpal v Sumedha Nagpal11, and it was
held as follows:-

"Section 26 of the Hindu Marriage
Act, 1955 provides for custody of children
and declares that in any proceeding under the
said Act, the Court could make, from time to
time, such interim orders as it might deem
just and proper with respect to custody,
maintenance and education of minor children,
consistently with their wishes, wherever
possible."

21. In the case at hand, proceedings
under the HMA being pending before the
Family Court, it is open to the parties to
invoke the jurisdiction of the court under
Section 26 for seeking orders with regard to
custody of the minor.

22. It is made clear that the
observations made, herein above, are prima
facie in nature and the same are without
prejudice to the rights and contentions of
the parties, which may be agitated in
proceedings before the appropriate forum.

23. Having regard to the aforestated
facts, this Court is not inclined to exercise
its extraordinary jurisdiction in the matter.

24. The petition stands accordingly
dismissed.
8 All. Mahesh Dayal Vs. State of U.P. & Anr.
299
----------
(2021)08ILR A299
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 656 of 2019

Mahesh Dayal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Sahai, Sri Bhavya Sahai

Counsel for the Respondents:
A.G.A., Sri Vinay Saran, Sri Pradeep Kumar
Mishra

A. Constitution of India - Article 226 -
Writ - Habeas Corpus - Issuance of -
When warranted - Detention in criminal
cases - B-warrant and P.T. warrant -
Petitioner has been taken into custody
in reference to other cases where the
bail has not yet been granted and not in
pursuance to B-warrant - The B-warrant
was issued in reference to five to seven
cases and not for all - Chart given by the
petitioner shows custody pursuant to
other cases and not in pursuant to the Bwarrant in all cases - Held, a writ of
habeas corpus is maintainable only
when it is a case of illegal detention -
Judgment of the Apex Court in Ram Dass
Ram's case distinguished holding that it
apply to the cases where accused is kept
in custody pursuant to P.T. warrant
despite his acquittal or bail. (Para 10, 12
and 14)

Writ Petition dismissed. (E-1)

Cases relied on :-
1. Habeas Corpus Petition No. 1151 of 2010,
K.S. Muthuramalingam
Vs State decided by Madras High Court on
01.07.2010
2. Ram Dass Ram Vs St. of Bihar & anr., AIR
1987 SC 1333

(Delivered by Hon'ble Munishwar Nath
Bhandari, J.
&
Hon'ble Shamim Ahmed, J.)

1. Heard Sri Bhavya Sahai, learned
counsel for the petitioner, Sri Pradeep
Kumar Mishra holding brief of Sri Vinay
Saran, Senior Advocate for the respondents
and the learned A.G.A.

2. A writ of habeas corpus has been
filed alleging illegal detention of the
petitioner.

3. Learned counsel for the petitioner
submits that an FIR was registered against
the petitioner followed by many other FIRs
on same set of facts. The bail was granted
to him in few cases but the petitioner has
not been released. The petitioner is
detained pursuant to B-Warrant though the
detention pursuant to B-Warrant is not
permissible.

4. Learned counsel for the petitioner
has made reference of the judgment of
Madras High Court in the case of
K.S.Muthuramalingam vs. State dated
01.07.2010 in Habeas Corpus Petition
No.1151 of 2010. There a reference of
judgment of the Apex Court in the case of
Ram Dass Ram vs. State of Bihar and
another, AIR 1987 SC 1333 has been
given. It has been held that detention
pursuant to P.T. Warrant is illegal if the
accused has already been acquitted or