# Sarita Verma & Anr v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-27
- **Case number:** Habeas Corpus Writ Petition No. 20 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarita-verma-anr-v-state-of-u-p-ors-50483
- **Pages:** 5

## Headnote

Civil Law - Constitution of India, 1950 -
Article
226,
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 & 6-A,
: - Writ of Habeas Corpus - mother raised
question of Custody of two minor child from
their father - on rule nisi issued by court, both
minor corpus are produced in court - children
are themselves expressed tehri disinclination to
go and reside with their mother - Maintainability
- writ of Habeas Corpus is a prerogative writ and
an extraordinary remedy, it is writ of right and
not writ of course and may be granted only on
reasonable ground or probable cause being
shown - held, in custody of minor, writ of
habeas corpus would be maintainable wherein it
is established that the detention of minor child
by the parent or other is illegal and have no
authority of law - in present case, neither the
custody of minor with their father or grandparents appear to be unlawful in fact and
circumstances of the of the case as well as
under the provisions of the Guardianship Act,
- hence, prayer made in petition is rejected -
However, petitioner is at liberty to raise her
claim for custody of children at Family court
and all necessary claim are open to be raised
before the said forum - mother have
visitation rights over her children - directions
issued, petition is disposed of.(Para - 14, 15,
17)

Writ Petition Disposed of. (E-11)

List of Cases cited:

## Text

6 All. Sarita Verma & Anr. Vs. State of U.P. & Ors.
435
plaintiff-respondents, notice was sent to
him by the lower appellate court which
notice was found to have been sufficiently
served upon him. The circumstances
pointed out that the application under Order
41 Rule 21 CPC was moved by the
appellant within time, that goes to give
thrust to possibility and fact that the
appellant was watching the proceeding
from outside the court and he was
compelled to seek recall of the judgment of
the lower appellate court after delivery of
the judgment by the lower appellate court.
He appears to have not come with clean
hands.

35. In view of the discussion made
hereinabove, it is obvious that the appeal
lacks merit and the same is dismissed. In
turn, the judgment, order and decree dated
05.04.2011 passed by the lower appellate
court is hereby sustained.

36. It is observed that nothing has been
reflected by this Court on the merits of the
judgment and order (dated 23.01.2008)
passed by the lower appellate court and this
order is confined to the consideration of the
application under Order 41 Rule 21 CPC and
this appeal in hand.

37. Both the parties shall bear their
costs.
----------
(2023) 6 ILRA 435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 20 of 2023

Sarita Verma & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sharad Chand Rai

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

Civil Law - Constitution of India, 1950 -
Article
226,
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 & 6-A,
: - Writ of Habeas Corpus - mother raised
question of Custody of two minor child from
their father - on rule nisi issued by court, both
minor corpus are produced in court - children
are themselves expressed tehri disinclination to
go and reside with their mother - Maintainability
- writ of Habeas Corpus is a prerogative writ and
an extraordinary remedy, it is writ of right and
not writ of course and may be granted only on
reasonable ground or probable cause being
shown - held, in custody of minor, writ of
habeas corpus would be maintainable wherein it
is established that the detention of minor child
by the parent or other is illegal and have no
authority of law - in present case, neither the
custody of minor with their father or grandparents appear to be unlawful in fact and
circumstances of the of the case as well as
under the provisions of the Guardianship Act,
- hence, prayer made in petition is rejected -
However, petitioner is at liberty to raise her
claim for custody of children at Family court
and all necessary claim are open to be raised
before the said forum - mother have
visitation rights over her children - directions
issued, petition is disposed of.(Para - 14, 15,
17)

Writ Petition Disposed of. (E-11)

List of Cases cited:

1. Syed Saleemuddin Vs Dr. Ruksana& ors.(2001
vol. 5 SCC 247),

2. Nithya Anand Raghavan Vs St. (NCT of Delhi)
(2017 vol. 8 SCC 454),

3. Kanu Sanyal Vs District Magistrate, Darjeeling
(1973 vol. 2 SCC 674),
436 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Tejaswini Gaud & ors.Vs Shekhare Jagdish
Prasad Tiwari & ors.(2019 vol. 7 SCC 42).

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Counter affidavit and Vakalatnama
filed by Shri Sanjay Singh, learned counsel
for respondent Nos. 4 to 7 is taken on
record.

2. Learned counsel for the petitioner,
Shri Sharad Chand Rai, learned counsel for
private respondent Shri Sanjay Singh and
learned A.G.A. for the State are present.

3. The corpus Vaishnavi and Ram
Soni are produced before the Court by S.I.
Mridul Mayank Pandey, P.S.- Kotwali
Nagar, District Sultanpur and respondent No.
4 Shri Rakesh Soni. The statements of corpus
Vaishanavi and Ram Soni has been recorded
before the Court. Corpus Vaishnavi stated
that she is aged around 13 years and her date
of birth is 16.01.2010, she stated that she is
receiving education in supervision of her
father at Stella Maris Convent School,
Sultanpur, her younger brother Ram Soni is
also receiving education in same school. She
stated that she is happily residing with her
father and she is not willing to go with her
mother, in fact, her mother never came to her
parental home to meet her. She expressed her
disinclination to go and live with her mother.
Similarly, child Ram Soni stated her age
around 10 years and there is no dispute
regarding his age. He further submitted that
he is studying in Class III in same school,
where his sister is studying. He also stated
that he is happily residing with his father and
is not willing to go and live with his mother.

4. Heard submissions of learned
counsel for the parties as well as learned
A.G.A. for the State.

5. Learned counsel for the petitioner
placed reliance on observations of this
court in Habeas Corpus petition No. 165 of
2022 Km. Sanaya Sharma (Minor) and
Another Vs. State of U.P. and 4 others,
decided on 07.04.2022 wherein claim for
custody was made by mother of the
children Km. Sanaya Sharma aged 5 years
and Master Tanisk Sharma aged around 2
and a half year, who were residing with
their grand-mother due to death of their
father,
who
committed
suicide
on
16.11.2020. On account of suicidal death of
father of the children an F.I.R. was lodged
by one Akash Sharma against their mother
Seema Sharma, the petitioner and 5 others,
in which investigation was under way.
After sad and unfortunate demise of
Akash Sharma, his wife Seema Sharma,
the petitioner, started living with her
sister at Moradabad, independently,
whereas,
her
small
kids,
namely,
Sanaya and Tanishk remained in the
company of their grand-mother. This
Court considered the provisions of
Section 6 of Hindu Minority and
Guardianship Act, 1956, wherein it is
provided that in 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;

6. According to this Court, Section 6A
of the said Act preserves the right of the
father to be the guardian of the property of
the minor child but not the guardian of his
person, whilst the child is less than five
years old. It carves out the exception of
interim
custody,
in
distinction
of
guardianship, and then specifies that
custody of a minor who has not completed
age of 5 years shall ordinarily be with the
mother.
6 All. Sarita Verma & Anr. Vs. State of U.P. & Ors.
437

7. In above case, this Court after
considering the fact that one children out of
two was barely of 5 years, whereas the
younger one was about 2 and a half year
old, both of them were minor and not of an
impressionable
age,
who
deserves
unqualified love, affection and protection
of their mother, who is their natural
guardian and therefore, the custody of both
children were handed over to their mother
by orders of this Court and their grandmother was provided a visitation right once
in a week and every Saturday between
12.00 noon to 05.00 P.M.

8. However, the facts of present case
are different as out of two children whose
question of custody is under consideration
before this Court, one of them is minor girl,
namely, Vaishnavi aged around 13 years
and the other is male child, namely, Ram
Soni aged around 10 years and both of
them were produced before this Court by
their father on rule nisi issued by this
Court. They are being imparted proper
education by their father and a number of
photographs
of
their
extra-curricular
activities in school as well as birthday
celebration are filed along with counter
affidavit of Respondent No. 4 to 7. The
children have themselves expressed their
disinclination to go and reside with their
mother. Although, this is unfortunate, yet
this is the state of affairs which reflects
from their statement before the Court. Both
the sides have made allegations against
each other in their respective pleadings
regarding the conduct and behaviour of
other side, however, those facts are not to
be gone into while deciding the present
habeas corpus petition.

9. The writ petition of Habeas Corpus
is a prerogative writ and an extraordinary
remedy, it is writ of right and not writ of
course and may be granted only on
reasonable ground or probable cause being
shown.

10. The Hon'ble Apex Court in Syed
Saleemuddin Vs. Dr. Ruksana and
Others 2001 (5 SCC 247) considered the
object and scope of writ of habeas corpus
in the context of a claim relating to custody
of minor child and held that in Habeas
Corpus petition, seeking transfer of custody
of child from one parent to the other, 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. 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.

11. Taking similar view in the case of
Nithya Anand Raghavan Vs. State (NCT
of Delhi) 2017 8 SCC 454, it was held by
Apex Court 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.

12. In this case, Apex Court quoted
with approval its observation in Kanu
Sanyal
Vs.
District
Magistrate,
Darjeeling (1973) 2 SCC 674, wherein it
was held that habeas corpus is essentially a
procedural writ dealing with machinery of
justice. 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
438 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

13. The question of maintainability of
habeas corpus petition under Article 226 of
the Constitution for custody of minor was
examined in Tejaswini Gaud and others
Vs. Shekhare Jagdish Prasad Tiwari and
others (2019) 7SCC 42, wherein the
Supreme Court has held in para 20 and 26
as under:-

"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 exception 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.

26. The court while deciding the
child custody cases is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes govern the rights of the parents or
guardians, but the welfare of the minor is
the
supreme
consideration
in
cases
concerning custody of the minor child. The
paramount consideration for the court
ought to be child interest and welfare of the
child."

14. In custody of minor, writ of
habeas corpus would be entertainable
where it is established that the detention of
minor child by the parent or others is illegal
and have no authority of law. In writ court,
the rights are determined on basis of
affidavits, in a case where the Court is of
the view that a detailed enquiry would be
required, it may decline to exercise the
extraordinary jurisdiction and direct the
parties to approach the appropriate forum.
The remedy ordinary in such matters would
lie
under
the
Hindu
Minority
and
Guardianship Act. In present case, even if
the facts of the case are examined on anvil
of provisions of Section 6 of Hindu
Minority
and
Guardianship
Act,
the
custody of the children Vaishnavi and Ram
Soni with their father and grand-parents
cannot be held to be unlawful or illegal, as
the children have crossed the age limit of 5
years, which provides that custody of minor
boy or an unmarried girl who has not
completed the age of 5 years shall
ordinarily be with the mother the and after
him the father will be natural guardian of a
Hindu minor boy or an unmarried girl.
Therefore, neither the custody of minor
with their father or grand-parents appear to
6 All. Ritu Tomar Vs. State of U.P. & Ors.
439
be unlawful in the facts and circumstances
of the case as well as under provisions of
Section
6
of
Hindu
Minority
and
Guardianship Act, 1956, it cannot be held
that the custody of minor children with
father and grand-parents is against their
welfare or interest. They are receiving
education in proper manner and have
expressed their desire to live with their
father and grand-parents at their parental
home,
unfortunately,
the
relationship
between their parents are estranged and
instead of residing together and offering
their love and affection to the children, they
are living separately for their own reasons
and
justification.
The
paramount
consideration in such type of cases is
welfare of the children also and in facts of
present case, it does not permit the transfer
of custody of the minor children from their
father to mother. Therefore, the prayer
made in the petition is rejected.

15. However, the petitioner is at
liberty to raise her claim for custody of
children at Family Court and all necessary
claim are open to be raised before the said
forum or in other appropriate proceedings.

16. Having regard to the aforesaid
facts and circumstances, rule nisi issued
earlier is not required to be made absolute,
it is discharged. Keeping in view, the fact
that both the sides have offered visitation
right to the children to other party, in case
of retention or transfer of custody in favour
of the other and the welfare of the children
also requires that they should receive love
and affection of both parents which will
help in their emotional, mental and
psychological growth in proper manner.

17. Therefore, it is directed that the
petitioner Sarita Verma, mother of the
children have visitation rights over her
children once in a week and every
Sunday between 12 Noon to 05:00 P.M.
usually, at the place of her husband,
subject to proper arrangements made
between spouse and the father of the
children Rakesh Soni is bound to provide
the congenial atmosphere and facilitate
the proposed meeting between the mother
and her two children and would not
create any hindrance or obstacle in the
same and in case of his non-cooperation,
the petitioner will be at liberty to
approach S.H.O. concerned, who will
provide necessary arrangements, which
will ensure the compliance of the
direction of this Court with regard to
visitation
right
of
the
petitioner.
Respondent No.4 Rakesh Soni, the father
of the children will also facilitate the
WhatsApp and video call between mother
and the children in case,she desires at
least twice a week.

18. The corpus- Vaishnavi and Ram
Soni are permitted to go back to the place
from where they have been brought today
by respondent No.4-Rakesh Soni.

19. With above observations, the
habeas corpus petition is disposed of.
----------
(2023) 6 ILRA 439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 7531 of 2023

Ritu Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: