# Saksham Pathak v. Vishal Dubey & Ors

- **Citation:** (2021) 6 ILRA 482
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-15
- **Case number:** Habeas Corpus Writ Petition No. 467 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saksham-pathak-v-vishal-dubey-ors-46169
- **Pages:** 10

## Headnote

Sri Sunil Kumar Singh, Sri Anil Kumar Srivastava
(Sr. Advocate), Sri Sunil Kumar Singh, Sri Prem
Narayan Singh, Sri Rahul Shukla

Corpus is four year old-mother died a
natural death-father is in transferable jobcorpus was regularly visiting his native
village along with her maternal aunt and
at times resides at her place-father remarried and claims the custody of his
child-but denied by respondent maternal
family-parents given priority for custodysecond marriage does not disentitle a
parent to the custody.

W.P. allowed. (E-8)

List of Cases cited:

## Text

482 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, nominated by the Court from the
Panel of Lawyers maintained by the High
Court Legal Services Committee, High
Court, Allahabad to appear on behalf of
respondent nos. 5 and 8. It must be placed
on record that Mr. Sudhanshu Kumar
rendered both invaluable and enthusiastic
assistance throughout the hearing. This
Court must record its appreciation that Mr.
Sudhanshu Kumar very ably discharged his
brief to the great advantage of this Court.
He will be entitled to receive in fee a
consolidated sum of Rs. 15,000/- from the
High Court Legal Services Committee,
High Court Allahabad.

81. Let this order be communicated to
respondent nos. 2 to 8, the Child Welfare
Committee,
Azamgarh,
and
the
Superintendent of the State Facility or Safe
Home, where the minor is/shall be housed,
through the Chief Judicial Magistrate,
Azamgarh
by
the
Joint
Registrar
(Compliance). Let a copy of this order be
also communicated to the Secretary, High
Court Legal Services Committee, High
Court, Allahabad by the Joint Registrar
(Compliance).
----------
(2021)06ILR A482
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Habeas Corpus Writ Petition No. 467 of 2020

Saksham Pathak ...Petitioner
Versus
Vishal Dubey & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shambhavi Shukla, Sri Dileep Kumar (Senior
Adv.), Sri Rajrshi Gupta, Sri Rizwan Ahmad
Counsel for the Respondents:
Sri Sunil Kumar Singh, Sri Anil Kumar Srivastava
(Sr. Advocate), Sri Sunil Kumar Singh, Sri Prem
Narayan Singh, Sri Rahul Shukla

Corpus is four year old-mother died a
natural death-father is in transferable jobcorpus was regularly visiting his native
village along with her maternal aunt and
at times resides at her place-father remarried and claims the custody of his
child-but denied by respondent maternal
family-parents given priority for custodysecond marriage does not disentitle a
parent to the custody.

W.P. allowed. (E-8)

List of Cases cited:

1. Gohar Begum Vs Suggi @ Nazma Begum &
ors., AIR 1960 SC 93

2. Syed Saleemudding Vs Dr. Ruksana & ors.,
2001(5) SCC 24

3. Dr. Veena Kapoor Vs Varinder Kumar Kapoor,
AIR 1982 SC 795

4. Rajiv Bhatia Vs Government of NCT of Delhi &
ors., AIR 1999 SC 3284

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

6. Sheoli Hati Vs Somnath Das, (2019) 7 SCC
490

7. Gaurav Nagpal Vs Sumedha Nagpal, (2009) 1
SCC 42

8. Surindar Kaur Sandhu Vs Harbax Singh
Sandhu, (1984) 3 SCC 698

9. Nil Ratan Kundu Vs Abhijit Kundu, AIR 2009
SC (Supp) 732

10. Mausami Moitra Ganguli Vs Jayanti Ganguli,
(2008) 7 SCC 673

11. Gaytri Bajaj Vs Jiten Bhalla, (2012) 12 SCC
471
6 All. Saksham Pathak Vs. Vishal Dubey & Ors.
483
12.Mamta Vs Ashok Jagannath Bharuka, (2005)
12 SCC 452

13. Rosy Jacob Vs Jacob A. Chakramakkal, AIR
1973 SC 2090

14.
Kirtikumar
Maheshankar
Joshi
Vs
Pradipkumar Karunashanker Joshi, AIR 1992 SC
1447

15. Ather Hussain Vs Syed Siraj Ahmad, (2010)
2 SCC 654

16. Lekha Vs P Anil Kumar, decided on 21
November 2006, passed in Appeal (Civil) No.
5131 of 2006

17. Sura Reddy Vs Chenna Reddy, AIR 1950 Mad
306

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri Dilip Kumar, learned
Senior Counsel assisted by Sri Rizwan
Ahmad, learned counsels for the petitioner
and Shri Anil Kumar Srivastava, learned
Senior Counsel assisted by Shri Rahul
Shukla,
learned
counsels
for
the
respondents.

2. The instant petition has been filed
for custody of the corpus (Saksham Pathak)
through Amit Kumar Pathak (father)1. The
corpus is in the custody of the respondents.

3. The facts giving rise to the instant
petition filed for writ of habeas corpus is
that A-1 is the only natural and legal
guardian of the corpus aged about four
years. A-1 is in the employment of Central
Reserve Police Force2; he came to be
married to Archana, daughter of Sri Vinod
Dubey, on
31
January 2013.
After
marriage, wife of A-1 started living at the
matrimonial house at village Merhi Dudhi,
Tehsil, Bharthana, district Etawah. A-1, at
intervals, used to visit his native village on
leave being sanctioned by the CRPF. From
the wedlock, corpus was born on 02
October 2016, at Etawah. In the process of
delivery, Archana's physical condition
became critical, she was shifted to
Intensive Care Unit (I.C.U.), and was
diagnosed of cardiac disorder by the
attending doctors, she was advised to take
treatment from a specialist. On 23/24
November 2016, Archana was brought by
her brother (second respondent) to consult
Heart Specialist at district Ujjain (Madhya
Pradesh) at her home district. Thereafter,
Archana was shifted for consultation and
treatment to Rhythm Heart Institute,
Vadodara, Gujarat, on 5 August 2017, by
A-1 and her brother (second respondent).
On improvement, Archana returned to her
matrimonial home and continued treatment,
however, on 11 October 2018, she
succumbed to a massive heart stroke. At
the relevant time, A-1 was posted at Meerut
and was taking training for United Nation
Mission, being a regular constable of 217
Battalion, Chhattisgarh. A-1 participated in
the funeral of Archana at his native village.
Archana's mother, brother and two sisters
i.e. second to fifth respondents participated
in the funeral.

4. It is urged by the learned counsel
for the petitioner that the fourth respondent
Sapna Dubey, aged about 27 years,
continued to stay at the matrimonial home
of Archana on the pretext that she would be
able to look after the infant child being his
mausi. It appears, thereafter, in January
2019, the fourth respondent along with the
corpus returned to Ujjain on the pretext that
the grand mother (nani) wanted to meet and
see the child. It is urged that in March,
during Holi, A-1 went to take the corpus
back to his native village, but on the
request of his in-laws he left the corpus
there and directly went to his place of
posting at Meerut after exhausting his
484 INDIAN LAW REPORTS ALLAHABAD SERIES
leave. In the month of September 2019, A1 again visited his native village and
requested his in-laws to bring back his son
during the leave period. It appears that the
corpus was regularly visiting the native
village of A-1 along with the fourth
respondent and at times was residing at
district Ujjain, as A-1 was not available
having regard to the nature of his duty. On
5 November 2019, A-1 came to be posted
at 139 Battalion at Delhi. At that relevant
time the fourth respondent along with the
corpus was at the native village of A-1 at
district Etawah. It appears that the fourth
respondent desired to live with the corpus
and marry A-1 as she would be the most
appropriate person to look after the infant
child.

5. It is submitted that the desire of
marriage by the respondents was expressed
at a time when the second marriage
proposal of A-1 with Varsha was at a
mature stage. Varsha is a well educated
lady and her parents had agreed for the
second marriage and also to look after the
child.
The
fact
that
the
marriage
negotiations of A-1 with Varsha was going
on and was at a mature stage was fully
known to the fourth respondent and the
other in-laws.

6. It is submitted that during this point
of time the corpus was forcefully taken
away by the second and fourth respondents
from the custody of A-1 and his family
members,
thereafter,
the
respondents
insisted and pressurized that A-1 should
marry the fourth respondent. Finally, on 30
June 2020, during the pandemic Covid-19
the marriage of A-1 was solemnized with
Varsha, daughter of Pradeep Kumar at
Etawah. The function was kept low profile
due to restriction during lockdown. It is
submitted
that
the
in-laws
of
A-1
(respondents except respondent no. 1) had
also attended the marriage ceremony. It is
further submitted that the second, fourth
and fifth respondents are unmarried, the
first respondent, the eldest brother-in-law
of A-1 was married, but has since been
convicted for the murder of his wife by the
Additional Sessions Judge, Nagda, District
Ujjain, under section 302 Indian Penal
Code (I.P.C.), whereas, the second, fourth
and fifth respondents though charged for
the offence were acquitted. First respondent
is
facing
life
term.
7. In this backdrop, it is submitted by
learned counsel for the petitioner that
corpus is in the illegal detention/custody of
the respondents, who admittedly are not the
natural guardian. A-1, having due regard to
the nature of his duty, has since been
posted at Delhi and being the only natural
guardian is entitled to the custody of the
corpus. The child has been removed against
the wishes of A-1 and his family by the
fourth
respondent.
8. The respondents have put in appearance
and filed counter affidavit. It is submitted
that first and second respondents are
maternal uncle (mama) of the corpus, the
third respondent is grandmother (nani),
whereas, fourth and fifth respondents are
mausi of the corpus and reside at Nagda,
district Ujjain. It is further stated that the
second, fourth and fifth respondents are
unmarried, whereas, the first respondent
was earlier married to Pinki, but thereafter
the first respondent has not remarried. It is
further stated that Archana, the sister of
first, second, fourth and fifth respondents,
was married to A-1 and the corpus was
born from the wedlock at district Etawah
(Uttar Pradesh). Archana, unfortunately,
died on 11 November 2018, at her in-laws
place. It is further stated that after the ritual
on the death of their sister (Archana) the
custody of the child was handed over by A-
6 All. Saksham Pathak Vs. Vishal Dubey & Ors.
485
1 to the respondents. It is further stated that
since then the corpus is residing with the
respondents and they are looking after his
welfare. A-1, nor his family members, ever
inquired about the well being of the corpus.
It is further submitted that the corpus,
presently is aged about 4 years, and has
been admitted to a play school, namely,
Rising Kids Play School, Nagda, Ujjain. It
is pleaded that since 11 November 2018,
A-1 never visited the house of the
respondents nor inquired about the child. It
is further stated that once or twice the
fourth respondent went and stayed at the
native village of A-1 along with the corpus
but after a couple of days she returned with
the corpus. It is further submitted that
corpus is happy and willing to stay with the
respondents, further, the corpus treats the
forth respondent as his mother and
addresses her as ''Archana'. It is further
submitted that the second respondent is a
manager of a company at Ujjain and earns
at Rs. 25000/- per month; the fifth
respondent is working as Primary Teacher
in Lakshya International School at Ujjain.
It is further stated that the corpus is the
only child in the family of the respondents
and all the respondents jointly take care of
the welfare of the child. The fourth
respondent
undertakes
to
take
the
responsibility of the corpus.

9. It is alleged that A-1 never took
care of his wife nor did he bear the
expenses of the treatment of his wife. It is
admitted that the respondents participated
in the last rites of Archana, thereafter,
returned to Ujjain with the minor child. It is
further admitted that the first respondent
was convicted for the murder of his wife by
the competent court on 10 July 2019 and
sentenced to life imprisonment. It is
submitted that A-1, having due regard to
the nature of his employment and duty, is
not in a position to look after the corpus,
further, welfare of the child will be
seriously
neglected
after
the
second
marriage of A-1.

10. Rival submissions fall for
consideration.

11. The question that falls for
consideration is whether the writ of habeas
corpus filed by the father (A-1) of the
corpus is entitled to seek custody of the
minor child from the respondents. Further
question
falling
for
consideration
is
whether handing over the custody of the
child to A-1 is not conducive to the interest
and welfare of the minor child.

12. It would be apposite to briefly
examine the law with regard to the custody
of the minor child in a petition seeking writ
of habeas corpus.

A. Scope of Habeas Corpus Petition:

13. Guardians and Wards Act, 1890,
is a secular law regulating questions of
guardianship and custody for all children,
irrespective
of
their
religion.
Hindu
Minority and Guardianship Act, 1956, is
applicable to persons who is a Hindu,
Buddhist, Jain or Sikh by religion. Hindu
Marriage Act, 1956, authorises courts to
pass interim orders in any proceedings
thereunder,
with
respect
to
custody,
maintenance and education of minor
children.

14. The term ''custody' is not defined
in any Indian Family Law, whether secular
or religions. The law governing custody is
closely linked with that of guardianship. As
against guardianship, the term custody is a
narrower concept relating to the upbringing
and day-to-day care and control of the
486 INDIAN LAW REPORTS ALLAHABAD SERIES
minor. Guardianship refers to a bundle of
rights and powers that an adult has in
relation to the person and property of a
minor.

15. The writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an effective
means of immediate release from illegal or
improper detention. The writ also extends
to restore the custody of a minor to his
guardian when wrongfully deprived of it.
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.

16. It is well established that in
issuing the writ of habeas corpus in the
case of infants, the jurisdiction which the
court exercises is an inherent jurisdiction as
distinct
from
statutory
jurisdiction
conferred by any particular provision in
any special
statute. In other words
employment of the writ of habeas corpus in
child custody cases is not pursuant to, but
independent of statute.

17. In Gohar Begum vs. Suggi @
Nazma Begum and others3, the Supreme
Court in the matter of custody by the
unwed mother of her illegitimate child had
directed that the person detaining the child
had no legal right to the custody and her
refusal to make over the child to the mother
resulted in an illegal detention of the child.
The Court held that the fact that the mother
had a right to take remedy under the
Guardians and Wards Act, 1890, is no
justification for denying her right of
seeking legal custody, being the natural
guardian, she is entitled to maintain the
writ petition. The Court held that the
dispute as to the paternity of the child is
irrelevant. (Refer- Syed Saleemudding
Versus Dr. Ruksana and other4)

18. In cases where disputed questions
of fact are involved either between the
natural guardians or any other person, the
Court has been reluctant in interfering in
writ jurisdiction.

19. In Dr. Veena Kapoor vs.
Varinder Kumar Kapoor5, the issue of
custody of child was between natural
guardians who were not living together.
The Supreme Court directed that District
Judge concerned to take down evidence,
adduced by the parties and sent report to
the Supreme Court on the question whether
considering the interest of the minor child,
its mother should be given custody.

20. In Rajiv Bhatia vs. Government
of NCT of Delhi and others6, the habeas
corpus petition was filed by the mother of a
girl child, alleging that her daughter was in
illegal custody of her husband's elder
brother. The elder brother relied on an
adoption deed. The plea taken by the
mother in the Supreme Court that it was a
fraudulent document. In the given facts,
Supreme Court held that the High Court in
writ jurisdiction was not entitled to
examine the legality of the deed of
adoption and then come to a conclusion one
way or the other with regard to the custody
of the child.

21. Habeas corpus proceedings is not
to justify or examine the legality of the
custody. The proceeding 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 wherein the circumstances of the
particular case, ordinary remedy provided
6 All. Saksham Pathak Vs. Vishal Dubey & Ors.
487
by the law is either not available or is
ineffective; otherwise a writ will not be
issued. In child custody the power of the
High Court in granting writ is qualified
only in cases where the detention of a
minor by a person who is not entitled to his
legal custody. In child custody matters, the
writ of habeas corpus is maintainable in
exceptional cases where it is proved that
the detention of the minor child by a parent
or others was illegal and without any
authority of law. (Refer-Tejaswini Gaud
Versus
Shekhar
Jagdish
Prasad
Tewari7).

22. In child custody matters, ordinary
remedy lies only under the Hindu Minority
and Guardianship Act, 1956, or the
Guardians and Wards Act, 1890, as the
case may be. There are significant
differences between the enquiry under the
Guardians and Wards Act, 1890, and the
exercise of powers by the 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
extraordinary jurisdiction and direct the
authorities to approach the competent Civil
Court/Family
Court.
It
is
only
in
exceptional cases the rights of the parties to
the custody of the minor will be determined
and exercised in extraordinary jurisdiction
on a petition of habeas corpus.

B.
Welfare-Paramount
Consideration:

23.

Paramount
consideration
regarding custody or other issues pertaining
to a child is ''welfare of the child'. It is not
the welfare of the father, nor welfare of the
mother or guardian. It is the welfare of the
minor and minor alone, irrespective of the
claims of the parties to the custody. (Refer-
Sheoli Hati vs Somnath Das8)

24. The expression ''welfare' used in
the statute 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 (supreme
guardian/protector) jurisdiction arising in
such cases. However, legitimate the claims
of the parties are, they are subject to the
interest and welfare of the child. (Refer-
Gaurav
Nagpal
Versus
Sumedha
Nagpal9, Surindar Kaur Sandhu vs
Harbax Singh Sandhu10)

25. In Nil Ratan Kundu vs. Abhijit
Kundu11, Supreme Court held that the
paramount consideration in custody of the
child is welfare of the minor and not the
legal right of the particular party. Section 6
of the Hindu Minority and Guardianship
Act, 1956, cannot supersede the dominant
consideration as to what is conducive to the
welfare of the minor child. The custody
cases cannot be decided on documents, oral
evidence or proceeds without reference to
"human touch". The human touch is the
primary consideration for the welfare of the
minor, since other materials may be created
either by the parties themselves or on the
advice
of
counsels
to
suit
their
convenience.

26. A court of law should keep in
mind relevant statutes and the rights
flowing therefrom. But such cases cannot
be decided solely by interpreting legal
488 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions. A Court while dealing in such
matters is neither bound by the statute nor
by strict rules of evidence or procedure nor
by the precedents. In selecting proper
guardian of a minor the court is exercising
parens patriae jurisdiction and is expected
and bound to given due weight to child's
ordinary comfort, contentment, health,
education, intellectual development and
favourable surroundings. But over and
above physical comforts, moral and ethical
values cannot be ignored. They are equally,
or even more important, essential and
indispensable consideration. If the minor is
old
enough
to
form
an
intelligent
preference or judgment, the court must
consider such preference as well, though
the final decision should rest with the Court
as to what is conducive to the welfare of
the minor. (Refer: Mausami Moitra
Ganguli vs. Jayanti Ganguli12)

27. It is not the better right of either
parent that would require adjudication
while deciding their entitlement to custody.
The desire of the child coupled with the
availability of a conducive and appropriate
environment for proper upbringing together
with the ability and means of the parent
concerned to take care of the minor are
some of the relevant factors that have to be
taken into account by the court while
deciding the issue of custody of a child,
irrespective of the rights conferred under
the statutory provisions or the personal
laws. (Refer-Gaytri Bajaj Versus Jiten
Bhalla13 and Mamta Versus Ashok
Jagannath Bharuka14)

28. In Rosy Jacob vs. Jacob A.
Chakramakkal15 Supreme Court held that
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. The children
are not mere chattels; nor are they mere
play-things for their parents. Absolute right
of parents over the destinies and the lives
of their (minor) 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.

29. In Kirtikumar Maheshankar
Joshi vs. Pradipkumar Karunashanker
Joshi16, the father of the children was
facing charge under Section 498A IPC and
the children expressed their willingness to
remain with their maternal uncle who was
looking after them very well and the
children expressed their desire not to go
with their father. The Supreme Court found
the
children
intelligent
enough
to
understand their well-being and in the
circumstances of the case, handed over the
custody to the maternal uncle instead of
their father.

C. Discussion & Conclusion:

30. Having briefly examined the law
pertaining to custody of minor child, I
would now revert to the facts of the instant
case.

31. The facts, inter se, parties are not
in dispute. The rights of the contesting
parties can be determined on the basis of
affidavits. The Court in the given facts is
not required to make a detailed enquiry in
the backdrop of the facts detailed in the
earlier part of the order. I am of the view
that
the
writ
of
habeas
corpus
is
maintainable.

32. A-1 father of the corpus is the
natural
guardian
of
the
child.
The
6 All. Saksham Pathak Vs. Vishal Dubey & Ors.
489
respondents are in-laws of A-1 and are not
the natural guardians. The natural guardian
is pitted against a third party. In other
words the child is in illegal detention of the
respondents. The onus, therefore, is upon
the respondents to prove as to why it is not
conducive to the welfare and interest of the
child in handing over the custody to A-1.

33. The point to be considered is the
custody of the minor child which solely rests
upon the welfare/best interest of the child.
The legal rights of the contesting parties,
including, the parent would not bind the
Court. It is admitted to the respondents that
A-1 is the father of the child born from the
deceased Archana-sister/brother/daughter of
the respondents. The child presently is aged
about four years. A-1 is gainfully employed
with the CRPF. He has contracted second
marriage with Varsha.

34. A-1 is presently posted at Delhi.
The first respondent is a convict facing life
term for murder of his wife. The second,
fourth and fifth respondents are unmarried;
second and fifth respondents are gainfully
employed, whereas, the fourth respondent is
unemployed. The corpus is the only child
amongst the respondents, probably for this
reason they feel attached to the minor child.
The child has recently been admitted to a
play-way pre-school by the respondents.
The child appears to be attached to the
fourth respondent and addresses her as his
mother.

35. The respondents, barring, the third
respondent (nani) are present in the Court.
The first respondent is on parole to attend
the proceedings. The respondents have
produced the child, pursuant to the
direction of the Court. A-1, Varsha and
grand mother (dadi of the corpus) are also
present.

36. The respondents press for the
custody of the child stating that the welfare
of the child would be compromised and
neglected by A-1 having regard to the
transferable nature of employment; coupled
with the fact that A-1 has contracted second
marriage. In other words, the child would
be neglected by the ''step mother'. The
fourth respondent made a statement, in the
presence of the respective counsels, that the
child should continue in her custody until
the child attains the age of ten years. The
respondents would take joint care of the
child in all respect. The child thereafter
could decide whether he wants to return to
his father or continue to stay with the
respondents. The fourth respondent on
specific query admits that she does not
have any legal right to the custody of the
child but states that the welfare of the child,
in the best interest, would be subserved
with the respondents. The child has been in
their custody for two years.

37. A-1 is able bodied, employed with
the Central Paramilitary Force, he has the
means and source to provide education to
his child. A-1 comes from a large joint
family having agricultural property. The
child after the demise of his mother was
taken care by the family at their native
village at Etawah. The child is intelligent,
of happy disposition and agile. The child
could write his name and that of his preschool. The child has been taken care well
by the respondents, by admitting him to a
school recently, but that is not sufficient to
claim custody. The moral and ethical
values cannot be ignored. On query, the
child could immediately spot his father in
the crowded court. He readily went to his
father and stayed with him throughout the
proceedings. The child is familiar and
attached to his father. It appears that the
child has been in continuous touch with his
490 INDIAN LAW REPORTS ALLAHABAD SERIES
father and his family as against the claim of
the
respondents.
He
identified
his
grandmother (dadi) in the Court.

38. It is not the case of the respondents
that A-1 suffers from any vice that is
detrimental to the interest of the child, or A-1
has indulged in domestic violence, or is not
sensitive to the needs of the child, or is not
responsive parent, or has a history of child
abuse, substance abuse or suffers from
psychiatric illness, or has any social issues
with the child that would negatively impact the
child. In contrast the child is comfortable with
the father, he is not afraid of the parent and
feels secure in his arms as is evident from his
demeanour.

39. The law gives priority to parents
where it comes to the custody of their children.
However, another person (third person) can go
to the Court and ask for custody. This kind of
request for custody is not always related to bad
behaviour by the parents. Some times, the
child's well being requires a third person to
have custody. The third person who wants
custody must prove to the Court that this is in
the interest of the child. This is not easy thing
to do because the parents are often in the best
position to ensure the well-being of their
children. The third person must convince the
court that the opposite is true. In the given
facts, in particular, conviction of the first
respondent for a heinous offence, the
respondents have miserably failed to, prima
facie, prove/show that the welfare of the child
would seriously be jeopardised in the event of
the custody being handed over to A-1. The
plea that the child should continue in the
custody with the respondent for the next six
years is without any basis.

40. The learned counsel for the
respondents finally submitted that the
second marriage of A-1 would not be in the
best interest of the child. The step mother is
likely to ignore the child. The argument
sought to be advanced is based on
assumption without any foundation being
laid to that effect.

41. Second marriage does not
disentitle a parent to the custody of the
child, though, the second marriage of either
of the parent is a factor to be considered
while granting custodial rights. (Refer-
Ather
Hussain
Versus
Syed
Siraj
Ahmad17)

42. In Lekha Versus P Anil
Kumar18
Supreme
Court
held
that
remarrige of the mother cannot be taken as
a ground for not granting the custody of the
child to the mother. The paramount
consideration should be given to the
welfare of the child. The Court referred to
the decision of the Madras High Court in
Sura Reddy Versus Chenna Reddy19,
wherein the court clearly laid down that a
Hindu father has married a second wife is
no ground whatsoever for depriving him of
his parental right of custody. The father
ought to be the guardian of the person and
property
of
the
minor
in
ordinary
circumstances.

43. Having regard to the facts,
circumstances and the material placed on
record, the custody of the child cannot be
permitted to continue any further with the
respondents (third party). The respondents
accordingly are directed to handover the
child to A-1 (natural guardian) forthwith.
To foster love and affection of all the
family members, the respondents, except
the first respondent, would have visiting
right to meet and interact with the child at
regular intervals preferably bimonthly at
the place where the child resides on prior
information to the parent of the child.
6 All. Kiranpal @ Kinna Vs. State of U.P. & Ors.
491

44. The writ petition is allowed.
----------
(2021)06ILR A491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.06.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 1160 of 2019

Kiranpal @ Kinna ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Yadav, Sri Saurabh Yadav

Counsel for the Respondents:
G.A.

Petitioner was minor-at time of incidentdefence
of
juvenility
raised
after
conviction -no appeal to Supreme Courtapproached JJ Board-declared minor on
the basis of ossification test-detention not
illegal-order of age determination not
sustainable.

Held, No doubt the standard of proof for age
determination is the degree of probability and
not proof beyond doubt. But the determination
of age, in a given case, has to be made keeping
in mind the object of the benevolent legislation,
the Juvenile Justice Act, that all persons who
were juvenile on the date of commission of
offence should be given benefit of the Act but
those who are taking plea of minor as a plea of
alibi should be shown the doors at the
threshold. It is settled legal position that all
scrupulous claims of juvenility should be thrown
at the threshold and genuine claims should be
examined with a liberal approach. No doubt that
a hyper technical approach in the matter of
enquiry would result in miscarriage of justice
but a casual or cavalier approach in the matter
of determination of age would result in travesty
of justice, which according to us, has happened
in this case. (para 23)

Petition dismissed. (E-8)

List of Cases cited:

1. Home Secretary (Prison) Vs H. Nilofer Nisha 1
and Amit Singh Vs St. of Mah., (2020) 14 SCC
161

2. Amit Singh Vs St. of Mah., AIR ONLINE 2011
SC 556

3. Pun. & Har. High Court in Gurdarshan
Singh Vs St. of Pun. & anr., (2013) 2 AICLR
368

4. Satya Deo @ Bhoorey Vs St. of U.P., AIR 2020
Supreme Court 4826

5. Arnit Das Vs St. of Bihar, AIR 2000 Supreme
Court 2264

6. Hari Ram Vs St. of Raj. & anr., AIR 2011 SC
(Criminal) 2053

7. Kanu Sanyal Vs District Magistrate, Darjeeling
& ors., (1973) 2 SCC 674

8.Home Secretary (Prison) Vs H. Nilofer Nisha,
2012 (9) SCC 768

9. Ashwani Kumar Saxena vs St. of M.P., 2012
(9) SCC 750

10. Abuzar Hossain @ Gulam Hossain Vs St. of
W.B., 2012 (10) SCC 489

11. Om Prakash Vs St. of Raj. & anr., 2012 (5)
SCC 201

12. Parag Bhati Vs St. of U.P. , 2016 (12) SCC
744

13. Mukarrab Vs St. of U.P., 2017 (2) SCC 210

14. Ramdeo Chauhan Vs St. of Assam, 2001 (5)
SCC 714

15. Ram Vijay Singh Vs St. of U.P., 2021 ONLINE
SC 142