# Shaurya Gautam (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-10
- **Case number:** Habeas Corpus Writ Petition No. 140 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shaurya-gautam-minor-anr-v-state-of-u-p-ors-45580
- **Pages:** 9

## Headnote

A.G.A., Sri Anurag Kumar, Sri Pankaj
Kumar Tyagi

Petition
instituted
by
father-seeking
custody of his two minor children-from
grandmother
(maternal)
and
Ashram
where they have been admitted for their
upbringing while he was in Jail under
charges of killing his wife-sole natural
surviving guardian-father is an accusedunless acquitted -not appropriate to place
the two minor children in his custody.

Writ Petition dismissed. (E-9).

Held, the totality of the circumstances on
record show that unless acquitted, it would not
be appropriate to place the two minor children
in their father's custody. It is all the more so as
the elder of the two minors, who can express an
intelligent preference about the guardian he
would like to be with, has ruled out the father.
He is also fearful of the father. It is also true
that the minors have been placed in the care of
an ashram, but they do not appear to be
neglected in the matter of their education. It is
not, indeed, an ideal situation about the minors'
welfare to be placed in institutional care, 12
where the grandmother and the aunt are
around in the same town. But the fears
expressed by the grandmother, who is an old
woman and the aunt, do not appear to be
entirely unfounded. Also, the grandmother is in
touch with the minors, as Shaurya Gautam
informed us. She pays them regular visit and
her caring hand is always there. (Para 16)

Writ Petition dismissed. (E-9)

List of Cases cited:-

## Text

354 INDIAN LAW REPORTS ALLAHABAD SERIES

51. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

52.Theconcerned Court/Authority/Official
shall
verify
the
authenticity
of
such
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification in
writing.
----------
(2020)12ILR A354
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2020

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

Habeas Corpus Writ Petition No. 140 of 2020

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

Counsel for the Petitioners:
Sri Digvijay Singh

Counsel for the Respondents:
A.G.A., Sri Anurag Kumar, Sri Pankaj
Kumar Tyagi

Petition
instituted
by
father-seeking
custody of his two minor children-from
grandmother
(maternal)
and
Ashram
where they have been admitted for their
upbringing while he was in Jail under
charges of killing his wife-sole natural
surviving guardian-father is an accusedunless acquitted -not appropriate to place
the two minor children in his custody.

Writ Petition dismissed. (E-9).

Held, the totality of the circumstances on
record show that unless acquitted, it would not
be appropriate to place the two minor children
in their father's custody. It is all the more so as
the elder of the two minors, who can express an
intelligent preference about the guardian he
would like to be with, has ruled out the father.
He is also fearful of the father. It is also true
that the minors have been placed in the care of
an ashram, but they do not appear to be
neglected in the matter of their education. It is
not, indeed, an ideal situation about the minors'
welfare to be placed in institutional care, 12
where the grandmother and the aunt are
around in the same town. But the fears
expressed by the grandmother, who is an old
woman and the aunt, do not appear to be
entirely unfounded. Also, the grandmother is in
touch with the minors, as Shaurya Gautam
informed us. She pays them regular visit and
her caring hand is always there. (Para 16)

Writ Petition dismissed. (E-9)

List of Cases cited:-

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

2. Nithya Anand Raghavan Vs State (NCT of
Delhi) & anr., (2017) 8 SCC 454

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

4. Yashita Sahu Vs St. of Raj. & ors., (2020) 3 SCC 67

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

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

1. Awadhesh Gautam has instituted this
petition for a writ of habeas corpus, on behalf
of his two minor children - Shaurya Gautam
and Km. Dishi Gautam. He prays that a writ,
order or direction in the nature of habeas
corpus may be issued by this Court, ordering
Smt. Brahma Devi Tiwari, respondent no. 4
and Sri Braddhanand Bal Ashram, Arya
Samaj Jama Wala, Tilak Road, Dehradoon,
Uttarakhand, respondent no. 5, to produce the
two minor children-detenues before this
Court and upon production, they be ordered
to be set a liberty in the manner that the
minors be given into the father's custody.
12 All. Shaurya Gautam (Minor) & Anr. Vs. State of U.P. & Ors.
355

2. A rule nisi was initially granted on
13.02.2020, but remained uncomplied with,
on account of disruption of judicial work in
the
wake
of
CoViD-19
pandemic.
Nevertheless, Mr. Pankaj Kumar Tyagi,
Advocate, put in appearance on 08.10.2020
and sought time to comply with the rule
nisi. Time was granted, fixing a date for
return on 15.10.2020. On 15.10.2020, the
rule nisi was again not complied with. In
the
circumstances,
the
petition
was
formally admitted to hearing, with Mr.
Anurag Dubey waiving service on behalf of
the fourth respondent. The Superintendent
of Police, Hathras, was ordered to cause the
two detenues to be produced before the
Court on 03.11.2020 at 02:00 p.m. The
Superintendent of Police, Hathras, was
directed to seek cooperation from his
counterpart
in
District
Dehradun,
Uttarakhand, in order to enforce the rule.

3. In compliance with the rule, the
minors were produced before the Court on
03.11.2020. This Court has interacted with the
elder of the two minors, Shauya Gautam,
besides the minors' grandmother (maternal)
Smt. Brahma Devi Tiwari. The Court also
spoke to the minors' aunt (mausi) Smt. Uma
Rawat, as also Awadhesh Gautam, the father,
who has brought this petition. This Court has
perused the writ petition and the counter
affidavit filed on behalf of the fourth
respondent.

4. Heard Mr. Digvijay Singh, learned
counsel for the petitioners and Mr. Pankaj
Kumar Tyagi, learned counsel appearing on
behalf of respondent no. 4 and Sri
Jhamman
Ram,
learned
Additional
Government Advocate appearing on behalf
of the State.

5. It appears that this issue about the
minors' custody has arisen in the context of
Awadhesh Gautam's wife and the minors'
mother,
Poonam
Gautam,
dying
an
unnatural
death,
regarding
which,
Awadhesh Gautam and four others of his
family were reported to the police by the
fourth respondent, charging them with
murder and destruction of evidence. A First
Information
Report
dated
20.09.2017,
giving rise to Case Crime No. 238 of 2017,
under Sections 147, 302, 201 of the Indian
Penal Code, 18601, Police Station -
Sahpau, District - Hathras, was registered.
It is alleged in the writ petition that
Shaurya Gautam and Km. Dishi Gautam
were forcibly taken away by respondent no.
4, when Awadhesh Gautam was sent to jail,
in
connection
with
the
crime
last
mentioned. It is also mentioned that he was
admitted to bail by an order of this Court
dated 15.11.2019 passed in Criminal Misc.
Bail Application No. 5179 of 2019. Upon
his release from jail, he approached the
fourth respondent. A request was made to
permit him to meet the children. He
discovered there that his children have been
lodged in Sri Braddhanand Bal Ashram,
Uttarakhand. He claims to have met his
children there. The children, it is claimed
by Awadhesh Gautam, asked him to take
them away with him. They stated that their
grandmother (mother's mother) was not
likeable and she had left them alone with
the
ashram,
wherefrom
they
wished
emancipation. It is also asserted that he
produced documents before the ashram
authorities to show that he was the minors'
father, and requested them to hand him
over custody of the minor children. It is
asserted that the ashram, respondent no. 5,
refused to release the children.

6. These facts have been strongly
controverted in the counter affidavit filed
by respondent no. 4. It is denied that
Shaurya Gautam and Km. Dishi Gautam
356 INDIAN LAW REPORTS ALLAHABAD SERIES
were forcibly removed from Awadhesh's
custody. Rather, the two minors had been
placed in the care of Awadhesh's brother,
Neeraj Gautam. It must be remarked that
Neeraj Gautam does not appear to be a
brother of Awadhesh's, but a cousin or
relative. It was Neeraj Gautam who handed
over custody of the two minors to the
fourth
respondent,
their
maternal
grandmother, in the presence of the Station
House Officer, Police Station - Sahpau,
District - Hathras. A photocopy of the
aforesaid memo, albeit undated, is annexed
to the counter affidavit as C.A.-3. It is
asserted that the grandmother's custody
cannot, therefore, be termed as unlawful.
The
fourth
respondent
has
said
in
paragraph 12 of the counter affidavit that
Awadhesh Gautam has murdered her
daughter and she fears for the minors' life,
if they were placed in his custody.

7. Apart from the said stand, it is
submitted that the fourth respondent's
custody, being not outrightly unlawful, the
father's
remedy
lies
in
instituting
proceedings to seek the minor's custody
before the court of competent jurisdiction,
under the Guardians and Wards Act,
18902. It is pointed out that Dinesh
Gautam, Awadhesh's brother, has moved
the Principal Judge, Family Court, Hathras,
under Section 9/10 of Act, 1890, with a
prayer that he be appointed the minors'
guardian and their custody ordered to be
handed over to him. This application has
been instituted on 25.07.2019, where
summonses were issued on 21.10.2019,
returnable
on
26.11.2019.
The
said
application is still pending. It is urged that
this petition, therefore, for a writ of habeas
corpus, is not maintainable.

8. This Court has keenly considered
the matter in all its various facets. So far as
the question regarding maintainability of a
habeas corpus writ petition to decide issues
regarding
custody
of
children
or
guardianship between a parent and some
other kindred, or between two parents, both
of
whom
are
natural
guardians
is
concerned, is, by now, fairly well-settled.
This question came up for consideration
before the Supreme Court in
Syed
Saleemuddin v. Dr. Rukhsana and
Others3. It was held in Syed Saleemuddin
(supra) held thus :

"11. From the principles laid
down in the aforementioned cases 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. Unfortunately, the Judgment of
the High Court does not show that the
Court has paid any attention to these
important and relevant questions. The High
Court has not considered whether the
custody of the children with their father
can, in the facts and circumstances, be said
to be unlawful. The Court has also not
adverted to the question whether for the
welfare of the children they should be taken
out of the custody of their father and left in
the care of their mother. However, it is not
necessary for us to consider this question
further in view of the fair concession made
by Shri M.N. Rao that the appellant has no
objection if the children remain in the
custody of the mother with the right of the
father to visit them as noted in the
12 All. Shaurya Gautam (Minor) & Anr. Vs. State of U.P. & Ors.
357
judgment of the High Court, till the Family
Court disposes of the petition filed by the
appellant for custody of his children."

9. The same question came up before
the Supreme Court in Nithya Anand
Raghavan v. State (NCT of Delhi) and
Another4. In Nithya Anand Raghavan
(supra), it was held :

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District
Magistrate,
Darjeeling
[Kanu
Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] ,
has held that habeas corpus was 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
produce the body of such person before the
court. On production of the person before
the court, the circumstances in which the
custody of the person concerned has been
detained can be inquired into by the court
and upon due inquiry into the alleged
unlawful
restraint
pass
appropriate
direction as may be deemed just and
proper.
The
High
Court
in
such
proceedings
conducts
an
inquiry
for
immediate determination of the right of the
person's freedom and his release when the
detention is found to be unlawful.

45. In a petition for issuance of a
writ of habeas corpus in relation to the
custody of a minor child, this Court in
Sayed Saleemuddin v. Rukhsana [Sayed
Saleemuddin v. Rukhsana, (2001) 5 SCC
247 : 2001 SCC (Cri) 841] , has held that
the principal duty of the court is to
ascertain whether the custody of child is
unlawful or illegal and whether the welfare
of the child requires that his present
custody should be changed and the child be
handed over to the care and custody of any
other
person.
While
doing
so,
the
paramount consideration must be about the
welfare of the child. In Elizabeth [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13] , it is held
that in such cases the matter must be
decided not by reference to the legal rights
of the parties but on the sole and
predominant criterion of what would best
serve the interests and welfare of the minor.
The role of the High Court in examining
the cases of custody of a minor is on the
touchstone of principle of parens patriae
jurisdiction, as the minor is within the
jurisdiction
of
the
Court
[see
Paul
Mohinder Gahun v. State (NCT of Delhi)
[Paul Mohinder Gahun v. State (NCT of
Delhi), 2004 SCC OnLine Del 699 : (2004)
113 DLT 823] relied upon by the
appellant]. It is not necessary to multiply
the authorities on this proposition.

46. The High Court while dealing
with the petition for issuance of a writ of
habeas corpus concerning a minor child, in
a given case, may direct return of the child
or decline to change the custody of the
child keeping in mind all the attending facts
and circumstances including the settled
legal position referred to above. Once
again, we may hasten to add that the
decision of the court, in each case, must
depend on the totality of the facts and
circumstances of the case brought before it
whilst considering the welfare of the child
which is of paramount consideration. The
order of the foreign court must yield to the
welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for
mere enforcement of the directions given
by the foreign court against a person within
358 INDIAN LAW REPORTS ALLAHABAD SERIES
its jurisdiction and convert that jurisdiction
into that of an executing court. Indubitably,
the writ petitioner can take recourse to such
other remedy as may be permissible in law
for enforcement of the order passed by the
foreign court or to resort to any other
proceedings as may be permissible in law
before the Indian Court for the custody of
the child, if so advised.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at
the threshold whether the minor is in lawful
or unlawful custody of another person
(private respondent named in the writ
petition). For considering that issue, in a
case such as the present one, it is enough to
note that the private respondent was none
other than the natural guardian of the minor
being her biological mother. Once that fact
is ascertained, it can be presumed that the
custody of the minor with his/her mother is
lawful.
In
such
a
case,
only
in
exceptionable situation, the custody of the
minor (girl child) may be ordered to be
taken away from her mother for being
given to any other person including the
husband (father of the child), in exercise of
writ jurisdiction. Instead, the other parent
can be asked to resort to a substantive
prescribed remedy for getting custody of
the child.

10. More recently, the issue engaged
the attention of their Lordships of the
Supreme Court in Tejaswini Gaud and
Others v. Shekhar Jagdish Prasad
Tewari and Others5. In Tejaswini Gaud
(supra), it was held 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 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."

11. The Supreme Court, still later,
considered the question in Yashita Sahu v.
State of Rajasthan and Others6, where it
was held :
12 All. Shaurya Gautam (Minor) & Anr. Vs. State of U.P. & Ors.
359

"10. It is too late in the day to
urge that a writ of habeas corpus is not
maintainable if the child is in the custody
of another parent. The law in this regard
has developed a lot over a period of time
but now it is a settled position that the court
can
invoke
its
extraordinary
wirt
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw v.
Arvand
M.
Dinshaw,
Nithya
Anand
Raghavan v. State (NCT of Delhi) and
Lahari Sakhamuri v. Sobhan Kodali among
others. In all these cases, the writ petitions
were entertained. Therefore, we reject the
contention of the appellant wife that the
writ petition before the High Court of
Rajasthan was not maintainable."

12. Here, the custody of the minors in
the hands of the fourth respondent cannot
be termed unlawful. The fourth respondent
is the minors' grandmother. She has been
given custody of the minors by Neeraj
Gautam,
the
cousin
or
relative
of
Awadhesh's, in the presence of the Station
House Officer, Police Station - Sahpau,
District - Hathras, who had custody of the
children after Awadhesh's arrest. Still,
Awadhesh could say that being the natural
guardian of the two minors, he has a right
to seek their custody from the grandmother.
It is precisely this right which Awadhesh
asserts, by virtue of Section 6 (a) of the
Hindu Minority and Guardianship Act,
19567. He says he is the sole natural
surviving guardian, and therefore, entitled
to the minors' custody. It is, no doubt, true
that Awadhesh is the minors' natural
guardian under Section 6 (a) of Act, 1956,
but the issue about the minors' custody is
not so much about the right of one who
claims it, as it is about the minors' welfare.
It is universally accepted for a principle in
all matters, where questions relating to
appointment or declaration of a guardian
arise, or a claim is made to the minor's
custody that it is the minor's welfare that is
of paramount importance. This principle is
engrafted in Section 13 (2) of Act, 1956
and also under Section 17 of Act, 1890. If it
could be shown, therefore, ex-facie, that the
minors'
welfare
is
best
secured
in
Awadhesh's hands, this Court would grant
immediate custody to the father. Here,
however, that does not appear to be the
case. The father is an accused. The issue of
welfare of the child cannot be mechanically
determined.
It
is
to
be
sensitively
approached, taking into consideration both
broad and subtle factors that would ensure
it best. The principle governing custody of
minor children, apart from other issues, fell
for consideration of the Supreme Court in
Nil Ratan Kundu and Another v. Abhijit
Kundu8. In Nil Ratan Kundu (supra), it
was held by their Lordships thus :

Principles governing custody of
minor children

52.In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
and complex question as to the custody of a
minor, a court of law should keep in mind
the relevant statutes and the rights flowing
therefrom. But such cases cannot be
decided
solely
by
interpreting
legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict rules
of evidence or procedure nor by precedents.
In selecting proper guardian of a minor, the
paramount consideration should be the
welfare and well-being of the child. In
selecting a guardian, the court is exercising
parens
patriae
jurisdiction
and
is
expected,nay bound, to give due weight to
a child's ordinary comfort, contentment,
health, education, intellectual development
360 INDIAN LAW REPORTS ALLAHABAD SERIES
and favourable surroundings. But over and
above physical comforts, moral and ethical
values cannot be ignored. They are equally,
or we may say, even more important,
essential and indispensable considerations.
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.

13. In Nil Ratan Kundu, facts also
disclose that the father, who claimed the
minor's
custody
from
his
maternal
grandfather and grandmother, was, like
here, an accused in a case relating to his
wife's
dowry
death.
The
father's
involvement in a case relating to his wife's
dowry death was regarded by their
Lordships as an important factor to be
carefully addressed by the Court in
reference to its facts and evidence. It must
be noted here that Nil Ratan Kundu was a
case that arose out of the proceedings under
the Act, 1890, and therefore, there were
detailed
findings
with
reference
to
evidence, which is not the case here.
Nevertheless,
the
fact
about
the
involvement of a natural guardian, in a
criminal case relating to the death of a
spouse, was held to be an important
consideration
while
determining
the
question of welfare of the minor. In this
regard, it was held in Nil Ratan Kundu
thus :

62. Now, it has come in evidence
that after the death of Mithu (mother of
Antariksh) and lodging of first information
report by her father against Abhijit (father
of Antariksh) and his mother (paternal
grandmother of Antariksh), Abhijit was
arrested by the police. It was also stated by
Nil Ratan Kundu (father of Mithu) that
mother
of
accused
Abhijit
(paternal
grandmother of Antariksh)absconded and
Antariksh was found sick from the house of
Abhijit.

63. In our considered opinion, on
the facts and in the circumstances of the
case, both the courts were duty-bound to
consider
the
allegations
against
the
respondent herein and pendency of the
criminal case for an offence punishable
under Section 498-A IPC. One of the
matters which is required to be considered
by a court of law is the "character" of the
proposed guardian. In Kirtikumar[(1992) 3
SCC 573 : 1992 SCC (Cri) 778] , this
Court, almost in similar circumstances,
where the father was facing the charge
under Section 498-A IPC, did not grant
custody of two minor children to the father
and allowed them to remain with the
maternal uncle.

64. Thus, a complaint against the
father alleging and attributing the death of
the mother, and a case under Section 498-A
IPC is indeed a relevant factor and a court
of law must address the said circumstance
while deciding the custody of the minor in
favour of such a person. To us, it is no
answer to state that in case the father is
convicted, it is open to the maternal
grandparents to make an appropriate
application for change of custody. Even at
this stage, the said fact ought to have been
considered and an appropriate order ought
to have been passed.

14. It was also emphasized in Nil
Ratan Kundu that wishes of the minor
ought to be taken into consideration, where
the minor is of an age that he can express
his/her intelligent choice. This is a principle
embodied in Section 17 (3) of Act, 1890.
Bearing in mind these facts, this Court
carefully interacted with the elder of the
two minors, that is to say, Shaurya Gautam.
12 All. Shaurya Gautam (Minor) & Anr. Vs. State of U.P. & Ors.
361
He is a 10-year old boy and fairly
intelligent. He informed the Court that he
and his sister stay at Sri Braddhanand Bal
Ashram, but he is not at all disturbed about
the fact that his maternal grandmother has
placed him and his sister there. He also told
the Court that there is a school, which he
and his sister attend. The grandmother
(nani) comes over to meet Shaurya and his
sister. He is emphatic that he does not wish
to go back to his father or stay with him.
On being asked the reason, he says that he
fears for his life. He also said that he
wishes to stay at the hostel. During the
course
of
conversation,
the
child
emotionally brokedown and wept. He
insisted upon staying with the hostel and
refused to go back to his father. Smt.
Brahma
Devi
Tiwari,
the
minors'
grandmother, told the Court that she stayed
alone. Her daughter and son-in-law live
close by. On being asked why she does not
house the children in her home, she said
that she is fearful of their father. He would
kidnap both of them and get her framed in a
false case. It is for the said reason that she
has housed the two children in the ashram.
The minors' aunt, Smt. Uma Rawat, told
the Court that she is a housewife. Her
husband is an engineer in a US-based firm,
domiciled in Dehradun. She also reiterated
that they do not keep the children with
them, because the father would get them
implicated in some false case. The father,
on being asked, denied these allegations
and said that he never threatened his inlaws.

15. This Court has looked into the
allegations in the First Information Report,
which shows that the father is facing trial
on a charge of murder of his wife. The First
Information Report indicates that his wife
had called her mother on 17.09.2017 that
there was a conspiracy afoot, where she
could be crushed to death under the wheels
of a tractor. Later on, she was found dead
near Jalesar Road, portraying it as an
accident. At least, that is the case in the
First Information Report. The postmortem
report shows crush injuries, from the skull
to the upper abdomen. Awadhesh Gautam
has said in the petition that his wife met an
unnatural death, due to accidental burn
injuries. This does appear to be the case.

16. This Court does not consider it
appropriate to say anything more about the
issue.
Whatever
has
been
remarked
hereinabove, is only to fathom the nature of
the allegations against Awadhesh Gautam.
It is, in no way, an expression of opinion
about the criminal charges against him. The
totality of the circumstances on record
show that unless acquitted, it would not be
appropriate to place the two minor children
in their father's custody. It is all the more so
as the elder of the two minors, who can
express an intelligent preference about the
guardian he would like to be with, has ruled
out the father. He is also fearful of the
father. It is also true that the minors have
been placed in the care of an ashram, but
they do not appear to be neglected in the
matter of their education. It is not, indeed,
an ideal situation about the minors' welfare
to be placed in institutional care, where the
grandmother and the aunt are around in the
same town. But the fears expressed by the
grandmother, who is an old woman and the
aunt, do not appear to be entirely
unfounded. Also, the grandmother is in
touch with the minors, as Shaurya Gautam
informed us. She pays them regular visit
and her caring hand is always there.

17. In the overall circumstances of the
case, this Court does not think that
Awadhesh Gautam is entitled to the minor's
custody, at least at this stage, when he is
362 INDIAN LAW REPORTS ALLAHABAD SERIES
facing criminal charges. If and when he is
acquitted and the children, still minors, it
would be open to him to make an
appropriate
application,
seeking
their
custody
to
the
court
of
competent
jurisdiction, under the Act, 1890, which
shall be decided in accordance with law,
according
to
the
circumstances
then
obtaining, without being influenced by
anything said here.

18. In the result, this petition fails and
stands dismissed.

19. In totality of the circumstances
obtaining for the present, this Court does
not find it appropriate to grant any
visitation rights to Awadhesh Gautam.
----------
(2020)12ILR A362
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 362 of 2020

Km. Rachna & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Avinash Pandey, Sri Shagir Ahmad,
Amicus

Counsel for the Respondents:
Sri J.K. Pandey, A.G.A.

Parents claimed that minor was enticed by
one Arjun and minor has left with him-Minor
claim that she was beaten by her motherout of frustration she has gone to her
friend's home who is a sister of Arjun-
Magistrate determined her age as 17 years
and directed Child Welfare Committee
directed to keep her in Women protection
home-questions involved-Whether writ of
habeas corpus maintainable against the
judicial order passed by Magistrate or by
Child
welfare
Committee?-Whether
detention of a corpus in women Protection
Home pursuant to an order is an illegal
detention? Matter referred to Larger benchas different views in this context exist. (E-9)

List of Cases cited:-

1. Menu Patel Vs St. of UP, 2015 SCC OnLine All 5892

2. Smt. Neelam Vs St. of U.P. & ors., Habeas Corpus
Writ Petition No.36519 of 2015, decided on 20.7.2015

3. Pushpa Devi Vs St. of U.P. & ors., 1994 HVVD
(All) C.R. Vol. II 259

4. Smt. Raj Kumari Vs Superintendent, Women
Protection, Meerut & ors., 1997 (2) A.W.C. 720

5. Smt. Preeti Nishad through her Husband,
Mahendra Kumar Vs St. of U.P., Habeas Corpus
No.146 of 2015.

6. Rahul Kumar Singh & anr. Vs St. of U.P. &
ors., Habeas Corpus Writ Petition No.47442 of
2015, decided on 15.9.2015

7. Kajal & anr. Vs St. of U.P. & ors., Habeas Corpus Writ
Petition No.3914 of 2018, decided on 22.2.2019

8. Saurabh Pandey Vs St. of U.P., 2019 SCC
OnLine All 4430

9. Smt. Shahjahan Vs St. of U.P. & ors., 9 2015
SCC OnLine All 5224

10. Km. Mona @ Reema Vs St. of U.P., 2014
SCC OnLine All 7099

11. Guria Bhagat @ Guria Rawani Vs St. of
Jhark. & ors., 2013 SCC OnLine Jhar 2149

12. Smt. Himani Vs St. of U.P. & ors., 2013 SCC
OnLine All 13088

13. Akash Kumar Vs St of Jhark. & ors., 2014
(19)
R.C.R.
(Criminal)
816