# Reshu @ Nitya (minor) & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-22
- **Case number:** Habeas Corpus Writ Petition No. 9 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reshu-nitya-minor-ors-v-state-of-u-p-ors-46703
- **Pages:** 21

## Headnote

Civil Law - Custody of minor Constitution of
India - Art.226 - Writ of Habeas corpus -
Petition for - Custody of minor - Paternal
grand-parents seeking custody of corpus, a girl
child aged about 3 years from her maternal
grandfather - mother of corpus, upon being
seriously ill, was taken away by the respondent
(maternal grandfather of corpus) along with
the minor child, for medical treatment - mother
died on 31.07.2019 - since then corpus is
under the care and custody of her maternal
grandfather - FIR u/s 498A, 304B IPC &
Section 3/4 Dowry Prohibition Act, 1961,
lodged in which petitioner /Paternal grandparents
named
as
accused
&
criminal
proceedings still pending - Held - custody of
minor with respondent (maternal grandfather
of corpus) cannot in any manner be said to
amount to an illegal and improper detention -
child from her infancy, living with her maternal
grandfather - father who is claiming custody is
named as an accused in a criminal case relating
to the death of the mother of the corpus, is a
relevant factor

Dismissed . (E-5)

Cases Relied on:

## Text

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784 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Magistrate, when she was produced
before him.

31. With these observations, the writ
petition is dismissed.

32. The Director General of Police, U.P. is
required to direct the Opposite party no.2 to
keep vigil over the society in the locality and to
ensure that the couple are not harassed by
anyone, nor subjected to threats or acts of
violence and anyone who gives threats or
harasses or commits act of violence either
himself or at his instigation, is taken to task by
instituting criminal proceedings by the police
against such persons and further stern action
taken against such persons as provided in the
law, in compliance of the direction of Hon'ble
Apex Court given in the case of Lata Singh
(Supra).

33. Further, the Director General of Police
and the local police officers shall also ensure the
law and order as well peace and tranquility in
the locality, so as to eradicate apprehension if
any as raised by the petitioner.

34. The Deputy Registrar (Criminal) to
communicate the order of the Court promptly to
the Director General of Police, Uttar Pradesh.
----------
(2021)11ILR A784
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

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

Habeas Corpus Writ Petition No. 9 of 2020

Reshu @ Nitya (minor) & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Rajeev Sawhney, Sri Rajiv Lochan Shukla, Sri
Ramanuj Yadav, Sri Virendra Kumar Yadav, Sri
M.D. Mishra

Counsel for the Respondents:
G.A., Sri Abhinav Gaur, Sri Ankur Verma, Sri
Manoj Kumar Rajvanshi, Sri Prakash Chandra
Yadav, Sri Anoop Trivedi

Civil Law - Custody of minor Constitution of
India - Art.226 - Writ of Habeas corpus -
Petition for - Custody of minor - Paternal
grand-parents seeking custody of corpus, a girl
child aged about 3 years from her maternal
grandfather - mother of corpus, upon being
seriously ill, was taken away by the respondent
(maternal grandfather of corpus) along with
the minor child, for medical treatment - mother
died on 31.07.2019 - since then corpus is
under the care and custody of her maternal
grandfather - FIR u/s 498A, 304B IPC &
Section 3/4 Dowry Prohibition Act, 1961,
lodged in which petitioner /Paternal grandparents
named
as
accused
&
criminal
proceedings still pending - Held - custody of
minor with respondent (maternal grandfather
of corpus) cannot in any manner be said to
amount to an illegal and improper detention -
child from her infancy, living with her maternal
grandfather - father who is claiming custody is
named as an accused in a criminal case relating
to the death of the mother of the corpus, is a
relevant factor

Dismissed . (E-5)

Cases Relied on:

1. Tejaswini Gaud Vs Shekhar Jagdish Prasad Tewari
& ors. (2019) 7 SCC 42

2. Kumari Palak (Minor) & anr. Vs Raj Kumar

3.Vishwakarma & ors. (Habeas Corpus Writ Petition
No. 61687 of 2016, dt 12.04.2017)

4. Neelam Vs Man Singh 2014 SCC OnLine P&H 25034

5. Smt. Anjali Kapoor Vs Rajiv Baijal (2009) 7 SCC
322
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
785
6. Athar Husain Vs Syed Siraj Ahmed & ors. (2010) 2
SCC 654

7. Shayamrao Maroti Korwate Vs Deepak Kisanrao
Tekram (2010) 10 SCC 314

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

9. Syed Saleemuddin Vs Dr. Rukhsana & ors. (2001)
5 SCC 247

10. Kirtikumar Maheshankar Joshi Vs Pradip Kumar
Karunashankar Joshi (1992) 3 SCC 573

11. Vaibhavi Sharma (Minor) & anr. Vs St. of U.P. &
ors. 2020 (12) ADJ 654

12. Vahin Saxena (Minor Corpus) & anr. Vs St. of U.P.
& ors. 2021 SCC OnLine All 593

13. Mohammad Ikram Hussain Vs St. of U.P. & ors.
AIR 1964 SC 1625

14. Kanu Sanyal Vs District Magistrate Darjeeling
(1973) 2 SCC 674

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

16. Sumedha Nagpal Vs State of Delhi (2000) 9 SCC 745

17. Rosy Jacob Vs Jacob A.Chakramakkal (1973) 1
SCC 840

18. Elizabeth Dinshaw Vs Arvand M. Dinshaw (1987)
1 SCC 42

19. Muthuswami Chettiar Vs K.M.Chinna Muthuswami
Moopanar AIR 1935 Mad 195

20. Re: McGrath (infants) [1893] 1 Ch. 143 C.A.

21. Re O. (an infant) [1965] 1 Ch. 23 C.A.

22. Walker Vs Walker & Harrison 1981 New Ze Recent
Law 257

23. Thrity Hoshie Dolikuka Vs Hoshiam Shavaksha
Dolikuka (1982) 2 SCC 544

24. Mausami Moitra Ganguli Vs Jayant Ganguli (2008)
7 SCC 673
25. Gaurav Nagpal Vs Sumedha Nagpal (2009) 1 SCC
42

26. Gaytri Bajaj Vs Jiten Bhalla (2012) 12 SCC 471

27. Vivek Singh Vs Romani Singh (2017) 3 SCC 231

28. Rachhit Pandey (Minor) & anr. Vs St. of U.P. & 3
ors. 2021 (2) ADJ 320

29. Master Manan @ Arush Vs St. of U.P. & ors. 2021
(5) ADJ 317

30. Krishnakant Pandey (Corpus) & ors. Vs St. of U.P.
& ors. (2021) 2 AWC 1053 All

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

1. Heard Sri M.D.Mishra along with Sri
Ramanuj Yadav, learned counsel for the
petitioners, Sri Vinod Kant, learned Additional
Advocate General, appearing along with Ms.
Sushma Soni, learned Additional Government
Advocate for the State respondents and Sri
Anoop Trivedi, learned Senior Counsel assisted
by Sri Ankur Verma, learned counsel for
respondent no. 4.

2. The present habeas corpus petition was
initially filed by the paternal grand-parents,
arrayed as petitioner nos. 2 and 3, seeking
custody of the petitioner no. 1, corpus, a minor
child stated to be of age about 19 months at that
point of time, who was said to be with the
respondent no. 4, her maternal grand-father.

3. The pleadings in the petition are
indicative of the fact that the petitioner no.1,
corpus, was born on 04.06.2018 from the
wedlock of the son of the petitioner nos. 3 and 4
and the daughter of respondent no. 4. It is stated
that the mother of the petitioner no. 1 was
seriously ill, thereafter she along with the
petitioner no. 1 went away along with the
respondent no. 4 for medical treatment and
subsequently she died on 31.07.2019 due to
786 INDIAN LAW REPORTS ALLAHABAD SERIES
acute cardiac respiratory arrest and after her
death the petitioner no. 1 is in the custody of
respondent no. 4. It is contended that despite
requests, the respondent no. 4 is not handing
over the custody of the petitioner no. 1 to the
petitioner nos. 2 and 3 and that the same
amounts to illegal detention.

4. A counter affidavit has been filed on
behalf of the respondent no. 4 wherein it is
pointed out that the respondent no. 4 was forced
into bringing his daughter back due to
continuous torture and cruelty inflicted upon her
by the in-laws, which resulted in her death, and
the newly born girl child, the petitioner no. 1, is
under the care of the respondent no. 4 since the
death of her mother. It is stated that the
respondent no. 4, who is the maternal grandfather of the petitioner no. 1, is providing good
care to her and it cannot be said that she is under
any kind of illegal custody. It is, at this stage, as
reflected
from
the
order-sheet,
that
an
application seeking impleadment of the father of
the petitioner no. 1 (corpus) was moved, which
was allowed on 14.02.2020 and he was
permitted to be impleaded as a petitioner in the
case.

5. A supplementary counter affidavit was
filed on behalf of the respondent no. 4
containing assertions with regard to the
harassment of the daughter of respondent no. 4
for dowry and torture and cruelty inflicted upon
her which ultimately resulted in her death.
Particulars of a criminal complaint and an FIR
dated 12.2.2020, lodged under Sections 498-A,
304-B IPC and Section 3/4 Dowry Prohibition
Act, 1961 in which the petitioner nos. 2, 3 and 4
(i.e. father and the paternal grand parents of the
corpus), are named as accused, have also been
mentioned.

6.

A
rejoinder
affidavit
and
a
supplementary rejoinder affidavits have been
filed on behalf of the petitioners disputing the
assertions made in the counter affidavit and the
supplementary counter affidavit, respectively,
and reiterating the claim with regard to custody
and guardianship of the petitioner no. 1, corpus.

7. Learned counsel for the petitioners has
sought to contend that the petitioner no. 1 being
a minor child, in the absence of her mother, the
petitioner no. 2, her father, who is the only
surviving parent, would be her natural guardian,
as per Section 6 of the Hindu Minority and
Guardianship Act, 19561 and accordingly the
respondent no. 4 is not entitled to retain her
custody and that the same is illegal. In support
of his submissions, reliance has been placed
upon the decisions in Tejaswini Gaud Vs.
Shekhar Jagdish Prasad Tewari and others2
and Kumari Palak (Minor) and another Vs.
Raj Kumar Vishwakarma and others3.

8. Controverting the aforesaid assertions,
learned Senior Counsel appearing for the
respondent no. 4 has submitted that the admitted
facts of the case are that the petitioner no. 1 is a
minor girl child of age about three years and that
she is under the care and custody of respondent
no. 4, her maternal grand-father, ever since she
was an infant of less than two years of age when
the mother was tortured for dowry and forced to
go to her parental home along with the minor
child.

9. It is further submitted that subsequent to
the death of her mother on account of the torture
and cruelty inflicted upon her, the minor child is
under the care and custody of respondent no. 4
which can in no manner be held to be illegal.
Pointing out to the fact that the petitioner nos. 2,
3 and 4 are named accused in the FIR relating to
offence of dowry death inflicted upon the
mother of the corpus and are facing criminal
trial, it is submitted that it would be totally
against the interest of the minor child to grant
her custody to the said petitioners. To support
his submissions, reliance is placed upon the
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
787
decisions in Neelam Vs. Man Singh4, Smt.
Anjali Kapoor Vs. Rajiv Baijal5, Athar
Husain Vs. Syed Siraj Ahmed and others6,
Shayamrao Maroti Korwate Vs. Deepak
Kisanrao Tekram7, Nil Ratan Kundu and
another
Vs.
Abhijit
Kundu8,
Syed
Saleemuddin Vs. Dr. Rukhsana and others9,
Kirtikumar Maheshankar Joshi Vs. Pradip
Kumar Karunashankar Joshi10, Vaibhavi
Sharma (Minor) and another Vs. State of
U.P. and others11, and Vahin Saxena (Minor
Corpus) and another Vs. State of U.P. and
others12.

10. Heard learned counsel for the parties
and perused the record.

11. In a petition seeking a writ of habeas
corpus in a matter relating to a claim for custody
of a child, the principal 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.

12. The writ of habeas corpus is a
prerogative writ and an extraordinary remedy. It
is a 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 others13 and Kanu Sanyal vs. District
Magistrate Darjeeling14. The observations
made in the Constitution Bench decision in the
case of Kanu Sanyal (supra) with regard to the
nature and scope of a writ of habeas corpus are
being extracted below.

"4. It will be seen from this brief
history of the writ of habeas corpus that it is
essentially a procedural writ. It deals with the
machinery of justice, not the substantive law.
The object of the writ is to secure release of a
person who is illegally restrained of his liberty.
The writ is, no doubt, a command addressed to a
person who is alleged to have another person
unlawfully in his custody requiring him to bring
the body of such person before the Court, but the
production of the body of the person detained is
directed in order that the circumstances of his
detention may be inquired into, or to put it
differently, "in order that appropriate judgment
be rendered on judicial enquiry into the alleged
unlawful restraint". The form of the writ
employed is "We command you that you have in
the King's Bench Division of our High Court of
Justice-immediately after the receipt of this our
writ, the body of A.B. being taken and detained
under your custody-together with the day and
cause of his being taken and detained to undergo
and receive all and singular such matters and
things as our court shall then and there consider
of concerning him in this behalf". The italicized
words show that the writ is primarily designed to
give a person restrained of his liberty a speedy
and effective remedy for having the legality of
his detention enquired into and determined and
if the detention is found to be unlawful, having
himself discharged and freed from such restraint.
The most characteristic element of the writ is its
peremptoriness and, as pointed out by Lord
Halsbury, L.C. in Cox v. Hakes (supra), "the
essential and leading theory of the whole
procedure is the immediate determination of the
right to the applicant's freedom and his release,
if the detention is found to be unlawful. That is
the primary purpose of the writ; that is its
substance and end."

13. 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.

14. 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
788 INDIAN LAW REPORTS ALLAHABAD SERIES
in Nithya Anand Raghvan Vs. State (NCT of
Delhi) and another15, 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.

15. Taking a similar view in the case of
Syed Saleemuddin vs. Dr. Rukhsana and
others9, 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..."

16. 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 others2,
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 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
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
789
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."

17. In the case of Smt. Anjali Kapoor Vs.
Rajiv Baijal5, where the custody of a minor
child was being claimed by the father being
natural parent from the maternal grand-mother,
the mother having died in child birth, it was held
that taking proper care and attention in
upbringing of the child is an important factor for
granting custody of child and on facts, the child
having been brought up by the grand-mother
since her infancy and having developed
emotional bonding, the custody of the child was
allowed to be retained by the maternal grandmother. While considering the competing rights
of natural guardianships vis-a-vis welfare of the
child, the test for consideration by the Court was
held to be; what would best serve the welfare
and interest of the child. Referring to the earlier
decisions in Sumedha Nagpal Vs. State of
Delhi16,
Rosy
Jacob
Vs.
Jacob
A.Chakramakkal17, Elizabeth Dinshaw Vs.
Arvand M. Dinshaw18, and Muthuswami
Chettiar
Vs.
K.M.Chinna
Muthuswami
Moopanar19, it was also held that welfare of
child prevails over legal rights of parties while
deciding
custody
of
minor
child.
The
observations made in the judgment in this regard
are as follows:-

"14.
The
question
for
our
consideration is, whether in the present scenario
would it be proper to direct the appellant to hand
over the custody of the minor child Anagh to the
respondent.

15. Under the Guardians and Wards Act,
1890, the father is the guardian of the minor child
until he is found unfit to be the guardian of the
minor female child. In deciding such questions, the
welfare of the minor child is the paramount
consideration and such a question cannot be
decided merely based upon the rights of the parties
under the law. (See Sumedha Nagpal v. State of
Delhi16 (SCC p. 747, paras 2 & 5).

16. In Rosy Jacob v. Jacob A.
Chakramakkal17, this Court has observed that:

"7...the principle on which the court
should decide the fitness of the guardian mainly
depends on two factors: (i) the father's fitness or
otherwise to be the guardian, and (ii) the
interests of the minors."

This Court considering the welfare of
the child also stated that: (SCC p. 855, para 15)

"15....The children are not mere chattels:
nor are they mere playthings for their parents.
Absolute right of parents over the destinies and the
lives of their children has, in the modern changed
social conditions, yielded to the considerations of
their welfare as human beings so that they may
grow up in a normal balanced manner to be useful
members of the society...."

17. In Elizabeth Dinshaw v. Arvand
M. Dinshaw18, this Court has observed that
790 INDIAN LAW REPORTS ALLAHABAD SERIES
whenever a question arises before 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.

18. At this stage, it may be useful to
refer to the decision of the Madras High Court,
to which reference is made by the High Court in
the case of Muthuswami Moopanar19, wherein
the Court has observed, that, if a minor has for
many years from a tender age lived with
grandparents or near relatives and has been well
cared for and during that time the minor's father
has shown a lack of interest in the minor, these
are circumstances of very great importance,
having bearing upon the question of the interest
and welfare of the minor and on the bona fides
of the petition by the father for their custody. In
our view, the observations made by the Madras
High Court cannot be taken exception to by us.
In fact those observations are tailor-made to the
facts pleaded by the appellant in this case. We
respectfully agree with the view expressed by
the learned Judges in the aforesaid decision."

18. In Anjali Kapoor (supra), it was held
that ordinarily, under the Guardian and Wards
Act, 189020, the natural guardians of the child
have the right to the custody of the child, but
that right is not absolute and the courts are
expected to give paramount consideration to the
welfare of the minor child.

19. The question as to how the court would
determine what is the benefit of the child was
considered in Re: McGrath (infants)21 and it
was observed by Lindley L.J., as follows :-

"...The
dominant
matter
for
the
consideration of the court is the welfare of the
child. But the welfare of a child is not to be
measured by money only, nor by physical
comfort only. The word welfare must be taken in
its widest sense. The moral and religious welfare
of the child must be considered as well as its
physical well-being. Nor can the ties of affection
be disregarded."

20. The issue as to welfare of the child
again arose in Re O. (an infant)22 where
Harman L.J., stated as follows :-

"It is not, I think, really in dispute that
in all cases the paramount consideration is the
welfare of the child but that, of course, does not
mean you add up shillings and pence, or
situation or prospects. What you look at is the
whole background of the child's life and the first
consideration you have to take into account
when you are looking at his welfare is; who are
his parents and are they ready to do their duty."

21. The question as to what would be the
dominating factors while examining the welfare
of a child was considered in Walker Vs.
Walker & Harrison23, and it was observed that
while material considerations have their place,
they are secondary matters. More important are
stability and security, loving and understanding
care and guidance, and warm and compassionate
relationships which are essential for the
development of the child's character, personality
and talents. It was stated as follows :-

"Welfare is an all-encompassing word.
It includes material welfare; both in the sense of
adequacy of resources to provide a pleasant
home and a comfortable standard of living and
in the sense of an adequacy of care to ensure that
good health and due personal pride are
maintained.
However,
while
material
considerations have their place they are
secondary matters. More important are the
stability and the security, the loving and
understanding care and guidance, the warm and
compassionate relationships that are essential
for the full development of the child's own
character, personality and talents."
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
791

22. In the context of consideration of an
application by a parent seeking custody of a
child through the medium of a habeas corpus
proceeding, it has been stated in American
Jurisprudence, 2nd Edn. Vol. 3924 as follows
:-

"...An application by a parent, through
the medium of a habeas corpus proceeding, for
custody of a child is addressed to the discretion
of the court, and custody may be withheld from
the parent where it is made clearly to appear that
by reason of unfitness for the trust or of other
sufficient causes the permanent interests of the
child would be sacrificed by a change of
custody. In determining whether it will be for
the best interest of a child to award its custody to
the father or mother, the court may properly
consult the child, if it has sufficient judgment."

23. The question of a claim raised by
maternal grand-father for guardianship of a
minor child whose mother had died after giving
birth to the child was subject matter of
consideration in Shyamrao Maroti Karwate
Vs.
Deepak
Kisanrao
Tekham25,
and
reiterating that in the matter of custody of a
minor child, paramount consideration is welfare
of minor and not rights of parents or relatives, it
was held that the appointment of the maternal
grand-father
as
guardian,
was
justified.
Referring to the judgments in Gaurav Nagpal
Vs. Sumedha Nagpal26, and Anjali Kapoor
Vs. Rajiv Baijal5, it was stated as follows :-

"17. In Gaurav Nagpal v. Sumedha
Nagpal26, this Court held: (SCC p. 57, para 51)

"51. The word ''welfare' used in
Section 13 of the Act has to be construed
literally and must be taken in its widest sense.
The moral and ethical welfare of the child must
also weigh with the court as well as its physical
well-being. Though the provisions of the special
statutes which govern the rights of the parents or
guardians may be taken into consideration, there
is nothing which can stand in the way of the
court exercising its parens patriae jurisdiction
arising in such cases."

18. In the light of the above
background, let us consider whether the custody
of the minor is to be entrusted with the maternal
grandfather as ordered by the District Court or
with the father as directed by the High Court.

19. We have already referred to the fact
that on 23-3-2003, after giving birth to the child,
the mother died and the child was taken by the
maternal grandfather. The maternal grandfather
filed a petition for custody on 7-8-2003 and the
father also made a similar petition for custody on
15-10-2003. Before the District Judge, it was
highlighted that immediately after the death of his
wife, the respondent husband married another
woman and also has a son from his second
marriage. Though the exact date of marriage is not
mentioned anywhere, the fact remains that within a
period of one year after the death of Kaveri,
daughter of the appellant herein, the respondent
husband married another woman. It is also
highlighted by the appellant that the respondent is
working as an Operator in Maharashtra State
Electricity Board at a distance of 90 km from his
residence. It is further stated that the place where
the respondent is residing is a rural village and
there is lack of better educational facilities.

20. It is the claim of the maternal
grandfather that he is a pensioner getting sizeable
income by way of pension and other retiral
benefits and also owns agricultural properties. It is
his further claim that he is living with his wife i.e.
maternal grandmother of the child and other
relatives such as sons and a daughter. It is also his
claim that he is residing in a taluk centre where
good educational facilities are available.

21. Though several allegations have
been made by the parties against each other, we
792 INDIAN LAW REPORTS ALLAHABAD SERIES
feel that in the absence of any specific finding
by the courts below on either of them, it is
unnecessary to refer to the same.

22. It is true that under the 1890 Act,
the father is the guardian of the minor child until
he is found unfit to be a guardian of the minor.
In
deciding
such
question,
this
Court
consistently held that the welfare of the minor
child is the paramount consideration and such a
question cannot be decided merely on the basis
of the rights of the parties under the law. This
principle is reiterated in Anjali Kapoor v. Rajiv
Baijal5.

23. Though the father is the natural
guardian in respect of a minor child, taking note
of the fact that welfare of the minor to be of
paramount consideration inasmuch as the
respondent father got married within a year after
the death of his first wife Kaveri and also having
a son through the second marriage, residing in a
rural village, working at a distance of 90 km and
of the fact that the child was all along with the
maternal grandfather and his family since birth,
residing in a taluka centre where the child is
getting good education, we feel that the District
Judge was justified in appointing the appellant
maternal grandfather as guardian of the minor
child till the age of 12 years. The High Court
reversed the said conclusion and appointed the
father of the child as his guardian."

24. It may be apposite, at this stage, to
refer to the law relating to guardians and wards,
which is governed in terms of the Guardian and
Wards Act, 189020 and an order with regard to
guardianship upon an application filed by a
person claiming entitlement may be passed
under the aforesaid enactment.

25. The GWA consolidates and amends the
law relating to guardians and wards. Section 4 of
the Act defines "minor" as "a person who has
not attained the age of majority". "Guardian"
means "a person having the care of the person of
a minor or his property, or of both his person
and property". "Ward" is defined as "a minor for
whose person or property, or both, there is a
guardian". Sections 5 to 19 of the Act relate to
appointment and declaration of guardians.

26. Section 7 thereof deals with "power of the
court to make order as to guardianship" which reads
as under:

"7. Power of the court to make order as
to guardianship.--(1) Where the court is satisfied
that it is for the welfare of a minor that an order
should be made--

(a) appointing a guardian of his person or
property, or both, or

(b) declaring a person to be such a
guardian, the court may make an order accordingly.

(2) An order under this section shall imply
the removal of any guardian who has not been
appointed by will or other instrument or appointed or
declared by the court.

(3) Where a guardian has been appointed
by will or other instrument or appointed or declared
by the court, an order under this section appointing or
declaring another person to be guardian in his stead
shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under
the provisions of this Act."

27. Section 8 of the Guardian and Wards Act,
1890 enumerates persons entitled to apply for an
order as to guardianship. Section 9 empowers the
Court having jurisdiction to entertain application for
guardianship. Sections 10 to 16 deal with procedure
and powers of court.

28. Section 17 is another material
provision and may be reproduced hereunder:
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
793

"17. Matters to be considered by the
court
in
appointing
guardian.--(1)
In
appointing or declaring the guardian of a minor,
the court shall, subject to the provisions of this
section, be guided by what, consistently with the
law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.

(2) In considering what will be for the
welfare of the minor, the court shall have regard
to the age, sex and religion of the minor, the
character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes,
if any, of a deceased parent, and any existing or
previous relations of the proposed guardian with
the minor or his property.

(3) If the minor is old enough to form
an intelligent preference, the court may consider
that preference.

....

(5) The court shall not appoint or
declare any person to be a guardian against his
will."

29. The Hindu Minority and Guardianship
Act, 19561 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.

30. Section 4 of the HMGA defines
"minor" as "a person who has not completed the
age of eighteen years". "Guardian" means "a
person having the care of the person of a minor
or of his property or of both his person and
property", and includes a "natural guardian".
"Natural guardian" means any of the guardians
mentioned in Section 6 of the HMGA.

31. Section 6 enacts as to who can be said
to be a "natural guardian". It reads thus:

"6. Natural guardians of a Hindu
minor.--The natural guardians of a Hindu
minor, in respect of the minor's person as well as
in respect of the minor's property (excluding his
or her undivided interest in joint family
property), are--

(a) 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;

(b) in the case of an illegitimate boy or
an illegitimate unmarried girl--the mother, and
after her, the father;

(c) in the case of a married girl--the
husband:

Provided that no person shall be
entitled to act as the natural guardian of a minor
under the provisions of this section--

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally
renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).

Explanation.--In
this
section,
the
expressions ''father' and ''mother' do not include
a stepfather and a stepmother."

32. Section 8 thereof enumerates powers of
a natural guardian and Section 13 deals with
welfare of a minor, and the same read as under :-

"8. Powers of natural guardian.--
794 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) The natural guardian of a Hindu
minor has power, subject to the provisions of
this section, to do all acts which are necessary or
reasonable and proper for the benefit of the
minor or for the realisation, protection or benefit
of the minor's estate; but the guardian can in no
case bind the minor by a personal covenant.

(2) The natural guardian shall not,
without the previous permission of the court,--

(a) mortgage or charge, or transfer by
sale, gift, exchange or otherwise, any part of the
immovable property of the minor; or

(b) lease any part of such property for
a term exceeding five years or for a term
extending more than one year beyond the date
on which the minor will attain majority.

(3)
Any
disposal
of
immovable
property by a natural guardian, in contravention
of sub-section (1) or sub-section (2), is voidable
at the instance of the minor or any person
claiming under him.

(4) No court shall grant permission to
the natural guardian to do any of the acts
mentioned in sub-section (2) except in the case
of necessity or for an evident advantage to the
minor.

(5) The Guardians and Wards Act,
1890 (8 of 1890), shall apply to and in respect of
an application for obtaining permission of the
court under sub-section (2) in all respects as if it
were an application for obtaining the permission
of the court under section 29 of that Act, and in
particular--

(a) proceedings in connection with the
application shall be deemed to be proceedings
under that Act within the meaning of section 4A
thereof;

(b) the court shall observe the
procedure and have the powers specified in subsections (2), (3) and (4) of section 31 of that Act;
and

(c) an appeal shall lie from an order of
the court refusing permission to the natural
guardian to do any of the acts mentioned in subsection (2) of this section to the court to which
appeals ordinarily lie from the decisions of that
court.

(6) In this section "court" means the
city civil court or a district court or a court
empowered under section 4A of the Guardian
and Wards Act, 1890 (8 of 1890), within the
local limits of whose jurisdiction the immovable
property in respect of which the application is
made is situate, and where the immovable
property is situate within the jurisdiction of more
than one such court, means the court within the
local limits of whose jurisdiction any portion of
the property is situate.

13.Welfare
of
minor
to
be
paramount
consideration.-(1)
In
the
appointment or declaration of any person as
guardian of a Hindu minor by a court, the
welfare of the minor shall be the paramount
consideration.

(2) No person shall be entitled to the
guardianship by virtue of the provisions of this
Act or of any law relating to guardianship in
marriage among Hindus, if the court is of
opinion that his or her guardianship will not be
for the welfare of the minor."

33. 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
11 All. Reshu @ Nitya (minor) & Ors. Vs. State of U.P. & Ors.
795
temporary custody and protection of the person
or property of the minor.

34. The aforestated provisions make it
clear that in a matter of custody of a minor child,
the paramount consideration is the "welfare of
the minor" and not rights of the parents or
relatives under a statute which are in force. The
word "welfare" used in Section 13 of the HMGA
has to be construed liberally and must be taken
in its widest sense.

35. The subject matter relating to custody
of children during the pendency of the
proceedings under the Hindu Marriage Act,
195527 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.

36. The provisions under Section 26 of the
HMA were considered in Gaurav Nagpal v
Sumedha Nagpal26, and it was held as
follows:-

"42. 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."

37.