# Rachhit Pandey & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-05
- **Case number:** Habeas Corpus No. 193 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rachhit-pandey-anr-v-state-of-u-p-ors-46736
- **Pages:** 9

## Headnote

A. Constitution of India,1950-Article 226maintainability of-petitioner and his wife
admittedly are living separately and their
minor son is in the custody of his motherthere being no pleading in regard to any
kind of illegal custody-the present petition
is not maintaible-in the case of detention
of child the only person competent to
move the court for a writ of habeas corpus
would be one who is entitled to the
custody
of
the
child-the
applicant
becomes entitled to the writ as of right
where the applicant establishes a prima
facie case that the detention is unlawfulthe custody of minor is on the touchstone
of principle of parens patriae jurisdictionhowever , petitioner does not want the
custody but being father of corpus, he
wants only visitation rights, for that he
could
avail
the
remedy
in
Family
Court.(Para 3 to 48)

The petition is dismissed. (E-5)

List of Cases cited:-

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES
05.01.2021 after this Court passed an order
dated 05.01.2021 in the present writ petition.
Even after this Court passed the order dated
06.01.2021,
no
investigation
or
action
whatsoever was taken in relation to the police
Officers/local police of Police Stations Chowk,
Jaitpura, Lalapur Pandeypur, District Varanasi
and named persons, namely, Gaurav Nigam
and Sunil Nigam.

11. The respondents remained silent and
neither investigated nor took any positive step
to investigate the matter with respect to the
persons mentioned in the application of the
petitioner no.1, dated 31.12.2020 and the police
personnels. The personal affidavit of respondent
no.2 filed today is totally silent in this regard.
Even in the short counter affidavit filed by
respondent no.2, there is no whisper with
respect to any investigation or action by the
respondent pursuant to the application of
petitioner no.1 dated 31.12.2020. In the short
counter affidavit, it has been stated in the
aforequoted paragraph nos. 6, 7, and 8 that one
Sunil Nigam and four others have been arrested
at 6:44 hours on 19.01.2021, from whose
possession one motorcycle TVS Apache,
bearing registration No. UP-65-AP-0725 and
the motorcycle used by the deceased Subham
Keshari were recovered. There is no whisper
that from whose possession it was recovered.
Nothing has been stated that why respondents
remained silent and have not taken any action
or investigated the matter pursuant to the
application of the petitioner no.1, dated
31.12.2020, till the petitioner no.2 was brutally
murdered and body was recovered by the police
of District Mirzapur on 15.01.2021 and the
investigation was transferred on 18.01.2021 to
Varanasi police.

12. In the light of the facts and
circumstances mentioned above, the role of
respondents - Varanasi police including the
respondent no.2 in the matter of brutal murder
of the petitioner No.2 and one Ravi Pandey, is
prima faice under serious cloud. Apart from
above the conduct of the respondent no.2 shows
not only deliberate gross disobedience and
disrespect to the orders of this court but also
deliberate
and
intentional
breach
of
fundamental rights granted under Article 21 of
the constitution of India as well as deliberate
gross dereliction in duty resulting in murder of
the petitioner No.2 and one Ravi Pandey.

13. Sri Sheo Kumar Pal, learned G.A.
prays for and is granted two days' time to enable
the respondent No.1 to file counter affidavit to
the writ petition and the supplementary affidavit
by means of his personal affidavit. The
respondent No.2 shall also file counter affidavit
by means of his personal affidavit annexing
therewith postmortem report of the petitioner
No.2 and Ravi Pandey. They shall file counter
affidavits on or before the next date fixed failing
which both the respondent No.1 and 2 shall
remain personally present.

14. Put up in the additional cause list
on 22.01.2021 at 2.00 P.M.

15. Copy of this order be given by the
office to the learned Government Advocate for
communication and necessary compliance.
----------

(2021)02ILR A26
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

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

Habeas Corpus No. 193 of 2020

Rachhit Pandey & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
2 All. Rachhit Pandey & Anr. Vs. State of U.P. & Ors.
27
Counsel for the Petitioners:
Sri Dharmendra Kumar Yadav, Sri Kailash
Singh Yadav, Sri Ravi Yadav

Counsel for the Respondents:
G.A., Sri Satyendra Singh

A. Constitution of India,1950-Article 226maintainability of-petitioner and his wife
admittedly are living separately and their
minor son is in the custody of his motherthere being no pleading in regard to any
kind of illegal custody-the present petition
is not maintaible-in the case of detention
of child the only person competent to
move the court for a writ of habeas corpus
would be one who is entitled to the
custody
of
the
child-the
applicant
becomes entitled to the writ as of right
where the applicant establishes a prima
facie case that the detention is unlawfulthe custody of minor is on the touchstone
of principle of parens patriae jurisdictionhowever , petitioner does not want the
custody but being father of corpus, he
wants only visitation rights, for that he
could
avail
the
remedy
in
Family
Court.(Para 3 to 48)

The petition is dismissed. (E-5)

List of Cases cited:-

1. Mohammad Ikram Hussain Vs St of U.P.&
ors., (1964) AIR 1625

2. Kanu Sanyal Vs D.M. Darjeeling.(1973) 2 SCC
674

3. Gaura Nagpal Vs Sumedha Nagpal,(2009) 1
SCC 42

4. Nithya Anand Raghvan Vs State (NCT of
Delhi) & 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 & ors.,(2019) 7 SCC
42

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

1. Heard Sri Dharm Pal Yadav,
learned counsel for the petitioners, Sri
Vinod Kant, learned Additional Advocate
General alongwith Sri Sanjay Sharma,
learned Additional Government Advocate
appearing for the State-respondents and Sri
Satyendra Singh, learned counsel for the
respondent no.4.

2. The present petition has been filed
for a writ of habeas corpus praying for the
following reliefs:-

"(i) issue a writ, order or direction
in the nature of Habeas Corpus directing
the respondents to produce the corpus
before this Hon'ble Court and the petitioner
no.1 be allowed to remain in the company
of the petitioner no.2.

(ii) issue a writ, order or direction
commanding the respondents to resolve the
matrimonial dispute, if any, by amicable
dialogue, mediation or court expeditiously
and the visiting rights be granted to the
petitioner no.2 as he is being denied access
to meet his child.

(iii) issue any other writ, order or
direction as this Hon'ble Court may deem
fit
and
proper
in
the
facts
and
circumstances of the case.

(iv) award cost of the petition to
the petitioners."

3. The order sheet of the case
indicates that at the very outset when the
case was taken up on 27.02.2020, learned
counsel for the petitioners submitted that
the petitioner no.2 did not want the custody
of the corpus i.e. the petitioner no.1 and
that he was pressing the petition only for
visitation
rights.
The
aforementioned
28 INDIAN LAW REPORTS ALLAHABAD SERIES
contention as noticed in the order dated
27.02.2020 is as follows:-

"Learned
counsel
for
the
petitioners at the very outset submitted that
petitioner no. 2 does not want the custody
of corpus, petitioner no. 1 as he is in the
custody of his mother, respondent No. 4,
but being father of corpus, he is only
pressing this petition for visitation right."

4. The order sheet further indicates
that the only dispute which is being
agitated in the present case is with regard to
the claim set up by the petitioner no.2 for
visitation rights.

5. As per the case set up in the
petition, the petitioner no.2 claims to have
married the respondent no.4 on 24.02.2014
and thereafter a male child i.e. the
petitioner no.1 was born on 17.06.2016.
Soon thereafter, sometime in October, 2016
the respondent no.4 (wife) is stated to have
deserted the petitioner no.2 and went to her
parental home. Since then she is stated to
have never returned to her matrimonial
home.

6. It is contended that the petitioner
no.2 and the respondent no.4 are living
separately since October, 2016 and that the
petitioner no.1 i.e. the minor son is in the
custody of his mother i.e. respondent no.4.
An application, under Section 9 of the
Hindu Marriage Act, 19551, seeking
restitution of conjugal rights is stated to
have been filed by the petitioner no.2
(husband) on 13.03.2019 and the same is
said to be pending before the Principal
Judge, Family Court, Kanpur Nagar. The
petitioner no.2 by means of the present
petition has sought to raise a claim with
regard to custody of the minor son and also
visitation rights.

7. The respondent no.4, wife, has filed
her personal affidavit dated 16.12.2020
wherein it is averred that she has filed a
divorce suit under Section 13 of the HMA
before the Principal Judge, Family Court,
Azamgarh being Divorce Suit No.874 of
2020 (Kavita v Rohan Pandey), which is
pending and the next date fixed in the case
is 08.02.2021. It is also submitted that the
petitioner no.1, minor son, is living with his
mother i.e. respondent no.4 who is his
lawful guardian and that the minor son
cannot be said to be in any kind of illegal
custody or detention and, accordingly, the
present habeas corpus petition is not
maintainable and is liable to be dismissed.

8. Parties have exchanged pleadings.
With the consent of parties the petition is
taken up for disposal.

9. Learned Additional Advocate
General
appearing
for
the
Staterespondents submits that the facts of the
present case show that the petitioner no.2
and the respondent no.4 admittedly are
living separately and the petitioner no.1 i.e.
the minor son is in the custody of his
mother and in view of the aforesaid, and in
particular there being no pleading with
regard to any kind of illegal custody, the
present petition which has been filed for a
writ of habeas corpus, would not be
maintainable.

10. Counsel for the petitioners fairly
submits that the only prayer that he seeks to
press in the present petition is in respect to
the relief regarding grant of visitation
rights.

11. The counsel for the contesting
respondent no.4 submits that since the
relief sought in the present petition is
confined to grant of visitation rights and
2 All. Rachhit Pandey & Anr. Vs. State of U.P. & Ors.
29
proceedings
relating
to
matrimonial
disputes between the parties are pending
before the Family Court, the present
petition seeking a writ of habeas corpus
would not be entertainable.

12. The fact with regard to the
petitioner no.2 and respondent no.4 (i.e. the
husband and wife) living separately since
October, 2016 is undisputed. It is also an
admitted
fact
that
divorce
proceeding
between the husband and the wife is pending
before the Family Court and that the
petitioner no.1 who is a minor aged about
four years is presently in the custody of his
mother. It is also the admitted position
between the parties that the petitioner no.1
(minor son) who was born on 17.06.2016,
has continuously stayed with his mother since
October, 2016, when she is stated to have left
her matrimonial home.

13. The order dated 27.02.2020 passed
by this Court indicates that the petitioner no.2
i.e. the husband never sought the custody of
the corpus and at the very outset it was stated
on behalf of the said petitioner that since the
minor son is in the custody of his mother he
was only making a prayer for grant of
visitation rights.

14. The writ of habeas corpus is a
prerogative writ, an extraordinary remedy,
evolved under the common law and
incorporated in our constitutional law, having
the objective to protect and safeguard
individual liberty.

15. In "Judicial Remedies in Public
Law"2, the writ of habeas corpus has been
described as follows:-

"The writ of habeas corpus is a
writ of right but not of course. This means
that the applicant has to show a prima facie
case that he is being unlawfully detained."

16. The above principle with regard to
a writ of habeas corpus being a writ of right
and not a writ of course and that it may be
granted only on reasonable ground or
probable cause being shown, has been
reiterated in Mohammad Ikram Hussain
v State of U.P. and others3, Kanu Sanyal
v District Magistrate Darjeeling4.

17. The nature and scope of writ of
habeas corpus was considered in the case of
Kanu Sanyal (supra) and the Supreme
Court after tracing the development of the
writ of habeas corpus by Common-Law
Courts in England held that the writ of
habeas corpus is essentially a procedural
writ dealing with the machinery of justice
but not the substantive law with an object
to secure release of a person who is
illegally restrained of his liberty.

18. 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.

19. In the case of detention of a child
or a minor the only person competent to
move the court for a writ of habeas corpus
would be one who is entitled to the custody
of the child.

20. In the instant case, the minor
child, soon after his birth, and ever since he
was infant of four months, has been in the
custody of his mother (respondent no.4),
30 INDIAN LAW REPORTS ALLAHABAD SERIES
who has admittedly left her matrimonial
home and is living separately.

21. The law relating to guardians and
wards is governed in terms of the
Guardians and Wards Act, 18905 and an
order with regard to guardianship upon an
application filed by a person claiming
entitlement may be passed under the
aforesaid enactment.

22. Looking to the subject nature of
disputes concerning the family and the
need to adopt an approach radically
different from that adopted in an ordinary
civil proceeding, the Family Courts Act,
19846 was enacted for establishing family
courts for speedy settlement of family
disputes and the jurisdiction in respect of
suits
and
proceedings
relating
to
matrimonial matters and also relating to
guardianship and custody of a minor is
vested in the family courts.

23.

The
Hindu
Minority
and
Guardianship Act, 19567 was enacted to
amend and codify certain parts of the law
relating to minority and guardianship
among Hindus. The Act is supplemental to
the Guardians and Wards Act, and in terms
of Section 2 thereof its provisions are in
addition to and not in derogation to the
Guardians and Wards Act.

24. The petitioner no.1 (minor son) is
about four and half years of age and in
terms of Section 6(a) of the HMGA the
custody of a minor who has not completed
the age of five years shall ordinarily be
with the mother.

25. The provision with regard to
making of an application regarding claims
based on entitlement of guardianship is
under the GWA and under Section 12
thereof the court is empowered to make
interlocutory orders for protection of a
minor including an order for temporary
custody and protection of the person or
property of the minor.

26. An application for restitution of
conjugal rights filed by the petitioner no.2
(father) under Section 9 of the HMA and
also a petition filed under Section 13 of the
HMA, by the respondent no.4 (mother), are
stated to be pending between the parties.

27. 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.

28. The provisions under Section 26
of the HMA were considered in Gaurav
Nagpal v Sumedha Nagpal8, 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."
2 All. Rachhit Pandey & Anr. Vs. State of U.P. & Ors.
31

29. In the case at hand, proceedings
under the HMA being pending between the
parties before the Family Court, the
jurisdiction of the court under Section 26
may be invoked for seeking orders with
regard to custody of the minor and the
relief in respect of visitation rights.

30. The court where the aforesaid
proceedings
are
pending
would
be
empowered to pass all such orders and
make provisions with regard to custody and
grant of visitation rights, from time to time,
in discharge of its duty relating to the care
and custody of the minor keeping in view
what would best serve the interest of the
child.

31. 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 v
State (NCT of Delhi) and another9, 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.

32. In the context of the facts of the
case, it was noted that the private
respondent therein being the biological
mother of the minor and a natural guardian,
it could be presumed that the custody of the
minor with his/her mother was lawful, and
in such a case only in an exceptionable
situation the custody of the minor may be
ordered to be taken away from the mother
for being given to any other person
including the father of the child, in exercise
of writ jurisdiction. The observations made
in the judgment in this regard are as
follows:-

"44. ...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 (see
Paul Mohinder Gahun Vs. State (NCT of
Delhi) & Ors. 2004 SCC OnLine Del 699,
32 INDIAN LAW REPORTS ALLAHABAD SERIES
relied upon by the appellant). It is not
necessary to multiply the authorities on this
proposition.

x x x

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 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."

33. In the aforesaid judgment, the view
taken in an earlier decision in the case of
Sayed Saleemuddin v Dr. Rukhsana and
others10, was taken note of. In the case of
Sayed Saleemuddin (supra) while deciding
the scope of a habeas corpus petition seeking
transfer of custody of children from father to
mother it was held that in such cases the
principal consideration for the court would be
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 the present custody should be
changed and the children should be left in the
care and custody of some one else. 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..."

34. 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 v Shekhar Jagdish Prasad
Tewari and others11 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
2 All. Rachhit Pandey & Anr. Vs. State of U.P. & Ors.
33
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."

35. 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

36. It is well settled that in matters of
custody the welfare of child would be of a
paramount consideration and the role of the
court in examining the cases of custody of
a minor is on the touchstone of principle of
parens patriae jurisdiction.

37. 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, would be qualified only in cases
where the detention of a minor is by a
person who is not entitled to his/her legal
custody.

38. In a case where facts are disputed
and a detailed inquiry is required, the court
may decline to exercise its extraordinary
34 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction and may direct the parties to
approach the appropriate court.

39. In the facts of the present case, the
respondent no.4 alongwith her minor son
who was an infant of about four months (at
that relevant point of time i.e. in October,
2016), is stated to have left her matrimonial
home and since then the minor is said to be
in the custody of his mother.

40. The two parents are admittedly
living separately since the time that the
respondent no.4 is stated to have left her
matrimonial
home,
and
matrimonial
disputes are pending between the parties, in
the form of an application filed by the
petitioner no.2 seeking restitution of
conjugal rights under Section 9 of the
HMA and the respondent no.4 (wife)
seeking a divorce by filing a petition under
Section 13 of the HMA.

41. Admittedly, the relief sought in
the present writ petition is restricted to a
claim for visitation rights.

42. The petitioner no.1, who is
presently less than five years of age, is
stated to be exclusively in the care and
custody of his mother, ever since he was an
infant of four months of age.

43. In terms of the provisions under
Section 6(a) of the HMGA, 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 no.1 (minor son) with the
respondent no.4 (mother) prima facie
cannot be said to be illegal.

44. 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.

45. Insofar as a claim with regard to
visitation rights is concerned, it is always
open to the parties concerned to avail the
remedy
by
moving
an
appropriate
application before the Family Court where
proceedings with regard to the matrimonial
disputes between the parties are stated to be
pending.

46. 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 the
proceedings before the court below.

47. Having regard to the aforesaid,
this Court is not inclined to exercise its
extraordinary prerogative jurisdiction for
issuance of a writ of habeas corpus, in the
facts of the case.

48.

The
writ
petition
stands
accordingly dismissed.
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(2021)02ILR A34
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Habeas Corpus Writ Petition No. 317 of 2020

Rakesh Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents