# Rishik Lavania & Anr v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-18
- **Case number:** Habeas Corpus Writ Petition No. 385 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishik-lavania-anr-v-state-of-u-p-ors-45212
- **Pages:** 4

## Headnote

(A) Criminal Law - Hindu Minority and
Guardianship Act, 1956 - Section 6 - natural
guardian of a hindu minor - Section 6(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 - Guardians
and Wards Act,1890 - Section 25 - child
custody .

Child stays with her mother and in her care and
custody - mother is a dentist and a well educated
woman - She is capable of earning her livelihood,
even if for the present, she does not have a job in
her home town of Agra - mother and the father
are both natural guardians under Section 6(a) of
the Hindu Minority and Guardianship Act, 1956.
(Para-2,7)

HELD:- If the mother's custody cannot be held
unlawful, there is no scope for this Court to issue a
writ of habeas corpus ordering the custody of the
minor to be hands-changed from the mother to
the father. If the father thinks that he has a better
right to the minor's custody, it is open to him to
bring a duly constituted application under Section
25 of the Guardians and Wards Act, or some other
provision of the said statute, as may be
advised.(Para - 4,7)

Habeas corpus petition dismissed.(E-7)

List of Cases Cited:-

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

## Text

10 All. Rishik Lavania & Anr. Vs. State of U.P. & Ors.
313
illegality or arbitrariness in the impugned
award in not computing the minimum
wages prescribed by the State Government
for
the
purpose
of
calculation
of
compensation.

7. Therefore, F.A.F.O. deserves to be
dismissed and is dismissed.
----------
(2020)10ILR A313
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2020

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

Habeas Corpus Writ Petition No. 385 of 2020

Rishik Lavania & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prashant Shukla, Sri Ram Prakash
Upadhyay

Counsel for the Respondents:
G.A., Sri Vineet Kumar Singh

(A) Criminal Law - Hindu Minority and
Guardianship Act, 1956 - Section 6 - natural
guardian of a hindu minor - Section 6(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 - Guardians
and Wards Act,1890 - Section 25 - child
custody .

Child stays with her mother and in her care and
custody - mother is a dentist and a well educated
woman - She is capable of earning her livelihood,
even if for the present, she does not have a job in
her home town of Agra - mother and the father
are both natural guardians under Section 6(a) of
the Hindu Minority and Guardianship Act, 1956.
(Para-2,7)

HELD:- If the mother's custody cannot be held
unlawful, there is no scope for this Court to issue a
writ of habeas corpus ordering the custody of the
minor to be hands-changed from the mother to
the father. If the father thinks that he has a better
right to the minor's custody, it is open to him to
bring a duly constituted application under Section
25 of the Guardians and Wards Act, or some other
provision of the said statute, as may be
advised.(Para - 4,7)

Habeas corpus petition dismissed.(E-7)

List of Cases Cited:-

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

(Delivered by Hon'ble J.J. Munir, J.)

1. In compliance with the rule nisi
issued by this Court vide order dated
16.09.2020, the minor Rishik Lavania has
been produced before this Court by Sub
Inspector Amit Prasad, posted at P.S.
Hariparvat, District Agra. Along with the
minor, the mother Dr. Smt. Akanksha
Vashishth has also appeared. The minor has
been identified before this Court by the Sub
Inspector who has brought him here. Smt.
Akanksha Vashishth, has appeared in
compliance
with
the
order
dated
31.08.2020 where it was left elective for
her. She has been identified before this
Court by Sri Vinit Kumar Singh, learned
counsel appearing on behalf of respondent
nos. 3, 4 and 5. He has also filed a short
counter affidavit. It is taken on record. A
supplementary affidavit has been filed on
behalf of the petitioner which is also taken
on record. Now, that master Rishik Lavania
is present in Court along with his mother,
Smt. Dr. Akanksha Vashishth, both of them
being identified, this Court considers it
appropriate for a just disposal of this rule
nisi to record the mother's stand in the
matter. The Court, accoringly, proceeds to
314 INDIAN LAW REPORTS ALLAHABAD SERIES
record the statement of Dr. Smt.Akanksha
Vashishth, verbatim:

Q. Your name?

A. Dr. Akanksha Vashishth.

Q. Your husband's name?

A. Dr. Sumit Lavania.

Q. What is your occupation?

A. I am BDS, Dentist.

Q.
Do
you
practice
your
profession?

A. I used to, but presently I am
not practicing.

Q. What is your source of
livelihood and support in life?

A. Currently my parents are there
and before coming to Agra I lived at
Mumbai. I was working there.

Q. The son stays in the custody of
your parents or your custody?

A. He stays with my parents since
I left him at my home town, due to Covid19. Now, I have left my job at Mumbai and
come back to my home town, Agra.

Q. You want the child to stay
with you?

A. Yes sir.

2. This Court has considered the
statement of the minor's mother Dr. Smt.
Akanksha Vashishth, who has categorically
stated that the child stays with her and in
her care and custody. It is her case that for
a brief spell of time due to outbreak of the
Covid-19 pandemic, she sent the child from
Mumbai where she was in a job, to her
parents. During that period of time the
child was with the grand parents. It is also
her stand that she has given up her job and
is back to her home town, Agra. She has
indicated her inclination to take care of the
child. Now, the father and the mother are
both natural guardians under Section 6(a)
of the Hindu Minority and Guardianship
Act.

3. Sri Vinit Kumar Singh, learned
counsel for the respondents has raised an
objection that this petition for habeas
corpus cannot be utilized as a substitute for
settling a custody dispute between two
natural guardians. In the event, the father
feels that he has a better claim to the
minor's custody he can suit his case before
the competent forum. It is Mr. Singh's
submission that a writ of habeas corpus can
issue to restore a minor's custody, where
the minor is in unlawful custody; not where
he/she is in custody that is pre-eminently
lawful.

4. This Court has considered the rival
submissions. In the opinion of this Court,
there is no cavil that the mother and the
father are both natural guardians under
Section 6(a) of the Hindu Minority and
Guardianship Act, 1956. It cannot be said
that a mother, if for some reason like the
welfare of the minor is not best suited to
hold his custody, her custody is unlawful. If
the mother's custody cannot be held
unlawful, there is no scope for this Court to
issue a writ of habeas corpus.

5. Learned counsel for the petitioner
at this stage has placed reliance upon the
decision
of
the
Supreme
Court
in
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others,
(2019) 7 SCC 42. He has called attention to
paragraphs 36 and 37 that are extracted
below:

"36. The appellants submit that
handing over of the child to the first
respondent would adversely affect her and
that the custody can be handed over after a
few years. The child is only 1 years old and
the child was with the father for about four
months after her birth. If no custody is
granted to the first respondent, the Court
10 All. Rishik Lavania & Anr. Vs. State of U.P. & Ors.
315
would be depriving both the child and the
father of each other's love and affection to
which they are entitled. As the child is in
tender age i.e. 1 years, her choice cannot be
ascertained at this stage. With the passage
of time, she might develop more bonding
with the appellants and after some time, she
may be reluctant to go to her father in
which case, the first respondent might be
completely deprived of her child's love and
affection. Keeping in view the welfare of
the child and the right of the father to have
her custody and after consideration of all
the facts and circumstances of the case, we
find that the High Court was right in
holding that the welfare of the child will be
best served by handing over the custody of
the child to the first respondent.

37. Taking away the child from
the custody of the appellants and handing
over the custody of the child to the first
respondent might cause some problem
initially; but, in our view, that will be
neutralised with the passage of time.
However, till the child is settled down in
the atmosphere of the first respondent
father's house, Appellants 2 and 3 shall
have access to the child initially for a
period of three months for the entire day
i.e. 8.00 a.m. to 6.00 p.m. at the residence
of the first respondent. The first respondent
shall ensure the comfort of Appellants 2
and 3 during such time of their stay in his
house. After three months, Appellants 2
and 3 shall visit the child at the first
respondent's house from 10.00 a.m. to 4.00
p.m. on Saturdays and Sundays. After the
child completes four years, Appellants 2
and 3 are permitted to take the child on
every Saturday and Sunday from the
residence of the father from 11.00 a.m. to
5.00 p.m. and shall hand over the custody
of the child back to the first respondent
father before 5.00 p.m. For any further
modification of the visitation rights, either
parties are at liberty to approach the High
Court."

6. The decision of their Lordships in
Tejaswini Gaud (supra) does not rule out
the remedy of a habeas corpus in custody
matters but makes it clear that it can issue
in a situation where the custody is in
unlawful hands. In Tejaswini Gaud
(Supra),
it
has
been
held
about
maintainability of a petition for a writ of
habeas corpus in custody matters, in
paragraphs 19 and 20 of the report, thus:

"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
316 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

7. It is thus evident that the present
proceedings would be open to the parties if
the minor were in the custody of an utter
stranger or a kindred who had no right
whatsoever under the law, or the custody held
by a person with no right, or is otherwise
illegal. In the present case, this Court finds
that the mother is a dentist and a well
educated woman. She is capable of earning
her livelihood, even if for the present, she
does not have a job in her home town of
Agra. There is no justification for this Court,
therefore, to issue a writ of habeas corpus
ordering the custody of the minor to be
hands-changed from the mother to the father.
This does not mean that the father is
remediless. If the father thinks that he has a
better right to the minor's custody, it is open
to him to bring a duly constituted application
under Section 25 of the Guardians and Wards
Act, or some other provision of the said
statute, as may be advised.

8. So far as the present writ petition is
concerned, this habeas corpus petition fails
and is dismissed subject to liberty given to
the father as indicated above.

9. The minor who has been brought by
the police, is left free to go with his mother.
The Sub Inspector who has brought the minor
here is discharged of his assignment.

10. The amount deposited with the
Registrar General of this Court shall be
remitted by the Registrar General forthwith in
the account of Dr. Smt. Akanksha Vashishth,
through a bank instrument payable at Agra.
----------
(2020)10ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

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

Habeas Corpus Writ Petition No. 484 of 2020

Aisha (Minor) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Alok Kumar Srivastava

Counsel for the Respondents:
G.A., Sri Adil Jamal

(A) Criminal Law - Mulla's Mahomedan
Law - Section 352 - Right of mother to
custody of infant children, Section 353 -
Right to female relations in default of
mother, Section 354 - Females when
disqualified for custody,Section 355 -
Right of male paternal relations in default
of female relations , Section 359 - Legal
guardians of property - mother by the
personal law of parties is not the natural
guardian of the minor - Rather, it is the
father who is the natural guardian - under
the personal law of parties who are
Muslims - there is a distinction made
between the natural guardianship that is
with the father and the right to custody of
the minor that vests in the mother, until
the age of puberty in case of a minor girl -
In the case of a minor boy that right to