# Shigorika Singh v. Dr. Abhinandan Singh & Ors

- **Citation:** (2021) 2 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-22
- **Case number:** Habeas Corpus No. 8820 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shigorika-singh-v-dr-abhinandan-singh-ors-46824
- **Pages:** 10

## Headnote

A. Constitution of India, 1950-Article 226application-allowed-petitioner
(mother)
and her husband admittedly are living
separately and their minor daughter was
living in the custody of mother and fathere
was used to visit her-one day he drove
away his daughter with the car-mother
requested to sent back her daughter to
her but he refused-aggrieved mother
preferred writ -the rule nisi is made
absolute- the applicant becomes entitled
86 INDIAN LAW REPORTS ALLAHABAD SERIES
to the custody of child as of right because
the applicant establishes a prima facie
case that the detention is unlawfulhowever father and grandparents would
be entitled for visitation right.(Para 1 to
33)

B. While considering whether the father in
taking the minor out of the custody of his
mother would be guilty u/s 364 IPC, it
cannot be held guilty for abduction as it
cannot be said that the child had been
removed from the custody of natural
guardian but the conduct of the accused
persons in taking away the child without
consent of the mother amounted to
cruelty as defined u/s 498-A IPC. Such an
act undoubtly disrupts the peaceful life of
the minor and militates against his/her
healthy mental growth.hence, the act of
the father is illegal.(Para 27)

The petition is allowed. (E-5)

List of Cases cited:-

## Text

2 All. Shigorika Singh Vs. Dr. Abhinandan Singh & Ors.
85
with the POCSO Act, the spirit of other
pro-child legislations and the human rights
of a married girl child. Being purposive
and harmonious constructionists, we are of
opinion that this is the only pragmatic
option available. Therefore, we are left with
absolutely no other option but to harmonise
the system of laws relating to children and
require Exception 2 to Section 375 IPC to
now be meaningfully read as: "Sexual
intercourse or sexual acts by a man with
his own wife, the wife not being under
eighteen years of age, is not rape." It is
only through this reading that the intent of
social justice to the married girl child and
the constitutional vision of the Framers of
our Constitution can be preserved and
protected and perhaps given impetus."

14. In the present set of facts, it is not
in
dispute
that
as
per
educational
certificate, the date of birth of the corpus is
20.05.2005. Hence, keeping in mind the
provisions of Section 94 of the J.J. Act, the
age recorded in the educational certificate
cannot be discarded in the proceedings
under the J.J. Act moreso when corpus in
her statement recorded on 07.08.2020
under Section 164, Cr.P.C. has stated that
her age is 16 years.

15. Once the corpus has been found to
be a child as defined by Section 2(12) of
the J.J. Act and allegedly, a victim of a
crime, she would fall in the category of
"child in need of care and protection" in
view of clauses (iii), (viii) and (xii) of subSection (14) of Section 2 of the J.J. Act.
Hence the order passed by the Child
Welfare Committee placing in a protection
Home would be within its powers confers
under Section 37 of the J.J. Act.

16. For all the reasons stated above,
the action of the respondent Nos.1 to 5 is
neither without jurisdiction nor illegal nor
perverse, keeping in mind the provisions of
the J.J. Act, 2015. Therefore, the detention
of the corpus cannot be said to be illegal so
as to warrant issuance of a writ of habeas
corpus. If the petitioner is aggrieved by the
order of the Child Welfare Committee, she
is at liberty to take recourse to the remedy
of an appeal provided under Section 101 of
the J. J. Act, 2015.

17. For all the reasons stated, above,
the writ petition is dismissed.
----------
(2021)02ILR A85
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Habeas Corpus No. 8820 of 2020

Shigorika Singh ...Petitioner
Versus
Dr. Abhinandan Singh & Ors.
 ...Respondents

Counsel for the Petitioner:
Chandra Shekhar Sinha

Counsel for the Respondents:
Govt. Advocate, Dr. Abhinandan Singh,
Kuldeep Srivastava, Padma Verma, Sunit
Kumar

A. Constitution of India, 1950-Article 226application-allowed-petitioner
(mother)
and her husband admittedly are living
separately and their minor daughter was
living in the custody of mother and fathere
was used to visit her-one day he drove
away his daughter with the car-mother
requested to sent back her daughter to
her but he refused-aggrieved mother
preferred writ -the rule nisi is made
absolute- the applicant becomes entitled
86 INDIAN LAW REPORTS ALLAHABAD SERIES
to the custody of child as of right because
the applicant establishes a prima facie
case that the detention is unlawfulhowever father and grandparents would
be entitled for visitation right.(Para 1 to
33)

B. While considering whether the father in
taking the minor out of the custody of his
mother would be guilty u/s 364 IPC, it
cannot be held guilty for abduction as it
cannot be said that the child had been
removed from the custody of natural
guardian but the conduct of the accused
persons in taking away the child without
consent of the mother amounted to
cruelty as defined u/s 498-A IPC. Such an
act undoubtly disrupts the peaceful life of
the minor and militates against his/her
healthy mental growth.hence, the act of
the father is illegal.(Para 27)

The petition is allowed. (E-5)

List of Cases cited:-

1. Yashita Sahu Vs. St. of Raj., (2020) 3 SCC 67

2. Elizabeth Dinshaw Vs Arvand M. Dinshaw ,
(1987) 1 SCC 42; 1987 SCC(Cri) 13 )

3. Nithya Anand Raghavan Vs St. (NCT of
Delhi) (2017) 8 SCC 454 :(2017) 4 SCC (Civ.)
104

4. Lahari Sakhamuri Vs Sobhan Kodali (2019)
7 SCC 311: (2019) 3 SCC (Civ.) 590

5. Kanika Goel Vs St. of (NCT of Delhi ) (2018) 9
SCC 578: (2018) 4 SCC (Civ.) 411

6. Vijai Kumar Sharma & ors. Vs St. of U.P. &
ors. (1991) I DMC 244

7. Nil Ratan Kundu Vs Abhijit Kundu,(2008) 9
SCC 413

(Delivered by Hon'ble Alok Mathur, J.)

1. The flames emanating from bitter
marital discord have reached this Court by
means of instant writ petition filed by the
mother for seeking custody of a minor
daughter, from her husband.

2. It has been submitted by Sri Chandra
Shekhar Sinha learned counsel for petitioner
that Dr Ayushi Singh, petitioner no.2
(hereinafter referred to as ''M') was married to
opposite party no.1 Dr. Abhinandan Singh,
(hereinafter referred to as ''F') on 14/02/2014
according to Hindu rites and rituals at
Lucknow. A
daughter,
petitioner
no.1
(hereinafter referred to as ''D') was born out
of the wedlock, who's date of birth is disputed
as according to ''M', it is 08/08/2016 while
according to ''F', it is 08/08/2015. ''M' has
stated that serious differences between them
commenced soon after the marriage including
harassment and physical torture by ''F' and his
family members on her as well as her parents
and brother. She was dropped by ''F' to her
maternal home on 25/12/2018 along with her
minor daughter, and since then they are living
together with the parents of ''M'. ''F' thereafter
used to visit the maternal house of ''M' to
meet ''D', and such visits were never objected
by ''M' or her parents. On 10/01/2020 ''F'
visited the maternal home of ''M' between 7-
8 PM and told ''M' that his father wants to
meet ''D' and that he is sitting in the car. ''F'
took ''D' from the custody of ''M' and went to
the car where his father was sitting and drove
away with ''D'. ''M' who was following ''F', on
seeing him drive away with her daughter
raised an alarm but by that time ''F' had left
with ''D'. Subsequently, on several occasions,
''M' requested ''F' to return ''D', but it was of
no avail, and in the aforesaid circumstances
she has preferred the present writ petition
seeking a direction in nature of habeas corpus
to ''F' to give custody of ''D' to ''M'.

3. ''D' has been admitted by the efforts
of both the parents to a prestigious girl's
school in Lucknow, La Martinere College,
where she is presently studying.
2 All. Shigorika Singh Vs. Dr. Abhinandan Singh & Ors.
87

4. It has been submitted by Sri
Chandra Shekar Sinha, learned counsel
appearing for the petitioner, that after the
separation between ''M' and ''F', the minor
daughter ''D' is living at her maternal home
since 25/12/2018. ''F', the father had full
visitation rights and was regularly visiting
''D' and no obstruction was ever created. He
has further submitted that the minor
daughter
was
in
the
custody
and
guardianship of her mother and there was
no dispute in this regard between ''M' and
''F'. The act of forcibly taking away ''D' out
of the custody of ''M' would amount to
abduction and cannot be termed as legal,
and therefore submits that the writ of
habeas corpus would lie to reunite the
minor daughter with her mother.

5. It has been stated that ''M' has
completed Bachelor of Dental Sciences
(BDS) course in 2013, and is presently
pursuing MDS course from Lucknow,
while ''F' has also completed MBBS
course in 2013 and is presently pursuing
MD (Neuro Psychiatry) course from
Mahatma
Gandhi
Medical
College,
Pondicherry. ''D' is staying at Lucknow
along
with
the
grandfather
and
grandmother. The grandmother often
stays at Delhi with the sister of ''F', and
therefore ''D' is being looked after by her
grandfather.

6. It has further been submitted by
''M' that troubles in the marriage erupted
from the very first day when ''F' came
home in an inebriated condition, and
subsequently on their honeymoon in Fiji
and Hong Kong where he consumed large
quantities of liquor and started physically
and mentally torturing ''M'. She has given
further details of the physical torture by
''F' and also the fact that he is suffering
from "Mental and Behavioral Disorder".
It has further been stated that the said
illness reached a very high level and
therefore ''F' was admitted to various
nursing homes as well as King George
Medical University from 08/03/2018 to
14/03/2018 and further was also admitted
for 15 days in "Nirwan De-addiction
Centre" in Lucknow as he was habitual of
heavy consumption of alcohol. In this
regard, it has been stated in the writ
petition that the aforesaid facts need to be
verified after summoning the record from
the de-addiction Centre. It has also been
stated that ''F' was under treatment from
"National Institute of Mental Health and
Neurosciences" (NIMHANS) Bangalore,
but ''M' could not get further details of
the
treatment
due
to
doctor-patient
confidentiality.

7. Sri I.B. Singh, Senior Advocate
appearing for ''F' has raised a preliminary
objection that the present petition is not
maintainable as there exist an efficacious
alternative remedy before the civil courts
under section 6 of The Guardians and
Wards Act, 1890. In reply to the allegation
that ''D' was taken away forcibly and
without consent of ''M', it has been stated
that when ''F' reached the maternal house of
'M' on 10/01/2020 he found that ''D' was
suffering from high fever as well as
shivering and respiratory distress. She was
immediately taken to one Dr M.K.Singh,
who
diagnosed
her
with
"bronco
Pneumonia". He has further submitted that
this clearly shows that ''M' was not taking
proper care of her daughter and in support
of his allegations he has annexed the
medical
report
and
findings
of
Dr
M.K.Singh. ''M' has denied the said
allegations about the ailments of her minor
daughter and stated that she herself is a
Doctor and would not be negligent about
her own daughter. It was further submitted
88 INDIAN LAW REPORTS ALLAHABAD SERIES
that Dr M.K.Singh is closely related (real
Phupha) to ''F' and the prescriptions are
doctored.

8. Regarding the date of birth of ''D',
it has been stated by ''F', that she was
born on 08/08/2015 in a hospital named
as Shakun Maternity Home, Lucknow
and at the time of filing of the affidavit in
this petition, ''D' was just 4 years and 11
months old. ''F' has denied that he is a
heavy drinker and also that he or his
family has ever mentally or physically
tortured ''M'. It has also been stated that
''M' does not have financial resources to
take care of their daughter.

9. The relationship between the two
families has come to such a point that
cross FIRs have been lodged against each
other, serious efforts to resolve the
dispute through the process of mediation
by the High Court has failed, and even
during the hearings, the counsels of both
the parties clearly stated that there was no
scope of any settlement at this stage.

10. I have heard the counsel of the
parties
and
perused
the
record.
Preliminary objection has been raised by
''F' stating that the present writ petition
for habeas corpus seeking the custody of
the
minor
daughter
would
not
maintainable inasmuch as there exists an
efficacious alternative remedy under the
Guardians and Wards Act, 1890. It has
been stated that in exercise of writ
jurisdiction for relief of habeas corpus, it
has to be demonstrated that the custody
of the detenue is illegal. It has been
submitted that the father is the natural
guardian of the minor girl, and therefore
the custody cannot be held to be illegal
and therefore such a prayer as sought for
by the petitioners cannot be granted.

11. The question as to whether the
High Court can issue a writ of habeas
corpus for seeking custody of a minor
child is no longer res integra and has
been dealt with by the Hon'ble Supreme
Court in various judgments.

12. In the case of Yashita Sahu v.
State of Rajasthan, (2020) 3 SCC 67 the
Supreme court has held:-

"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
writ
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw
v.
Arvand
M.
Dinshaw
[Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13], Nithya
Anand Raghavan v. State (NCT of Delhi)
[Nithya Anand Raghavan v. State (NCT of
Delhi), (2017) 8 SCC 454 : (2017) 4 SCC
(Civ) 104] and Lahari Sakhamuri v.
Sobhan Kodali [Lahari Sakhamuri v.
Sobhan Kodali, (2019) 7 SCC 311 : (2019)
3 SCC (Civ) 590] 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.

11. We need not refer to all
decisions in this regard but it would be
apposite
to
refer
to
the
following
observations from the judgment in Nithya
Anand
Raghavan
[Nithya
Anand
Raghavan v. State (NCT of Delhi), (2017)
8 SCC 454 : (2017) 4 SCC (Civ) 104] :
(SCC pp. 479-80, paras 46-47)

"46. The High Court while
dealing with the petition for issuance of a
2 All. Shigorika Singh Vs. Dr. Abhinandan Singh & Ors.
89
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 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)."

12. Further, in Kanika Goel v.
State (NCT of Delhi) [Kanika Goel v. State
(NCT of Delhi), (2018) 9 SCC 578 : (2018)
4 SCC (Civ) 411] , it was held as follows :
(SCC p. 609, para 34)

"34. As expounded in the recent
decisions of this Court, the issue ought not
to be decided on the basis of rights of the
parties claiming custody of the minor child
but the focus should constantly remain on
whether the factum of best interest of the
minor child is to return to the native
country or otherwise. The fact that the
minor child will have better prospects upon
return to his/her native country, may be a
relevant
aspect
in
a
substantive
proceedings for grant of custody of the
minor child but not decisive to examine the
threshold issues in a habeas corpus
petition. For the purpose of habeas corpus
petition, the Court ought to focus on the
obtaining circumstances of the minor child
having been removed from the native
country and taken to a place to encounter
alien environment, language, custom, etc.
interfering with his/her overall growth and
grooming and whether continuance there
will be harmful."

13. In light of the aforesaid decisions,
it is clear that the writ of Habeas Corpus in
the facts of the present case would be
maintainable and the preliminary objection
taken by ''F' deserve to be rejected.

14. This brings us directly to the
merits of the matter which require a more
detailed examination of the facts placed
before this court, and determine as to what
would be in the best interest of the child.

15. ''M' and ''F' stayed together after
marriage till 25/12/2018 and subsequently
''D' and ''M' were living in the maternal
home of ''M'. ''F' continuously visited and
met ''D'. It is not the case of the ''F' that he
was ever denied visitation rights by ''M'.
''D' was admitted to ''Footprints' for preschooling
in
June
2019
and
was
subsequently admitted to La Martinere
Girls
College,
Lucknow.
It
is
on
10/01/2020 that ''F' during one of his visits
to meet ''D' at the maternal house of ''M' by
deploying subterfuge took ''D' out of the
custody of ''M', without her consent or
informing ''M'. It is stated that ''F'
discovered that ''D' was suffering from high
90 INDIAN LAW REPORTS ALLAHABAD SERIES
fever and therefore took to a doctor whose
medical report has been annexed herewith.
''M' has made fervent pleas to ''F' to return
''D', but he did not show any inclination.

16. In the aforesaid facts and
circumstances of the case the moot
question is whether the detention of ''D' by
''F' can be held to be improper, illegal or
without authority of law so as to invoke the
writ jurisdiction of this court for grant of
writ of habeas corpus.

17. Due consideration must be given
to section 6 of the Hindu Minority and
Guardianship Act,

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

(a) in the case of a boy or an
unmarried girl--the father, and after him,
the mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother;

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

(c) in the case of a married girl--
the husband: Provided that no person shall
be entitled to act as the natural guardian of
a minor under the provisions of this
section-- (

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

(b) if he has completely and finally
renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--In this section, the expressions
"father" and "mother" do not include a stepfather and a step-mother."

18. According to section 6(a), the father
and mother are the natural guardians of a
minor, but the mother is the preferred
guardian where the minor is below the age of
5 years. In the writ petition the age of ''D' has
been shown to be 3 1⁄2 years. In the counter
affidavit it has been stated that the age of ''D'
is 4 years and 11 months, and in its support
the birth certificate of Shakun Maternity
Home has been annexed indicating the date
of birth to be 08/08/2015. This fact has been
contested in the rejoinder affidavit where the
date of birth has been asserted to be
08/08/2016 and in support of the same birth
certificate issued by Nagar Nigam has been
annexed.

19. Considering the rival claims
concerning the date of birth, irrespective of
the versions presented by either ''M' or ''F',
''D' is admittedly below the age of 5.

20. In the present case the age of ''D' is
of relevance, for the applicability of section
6(a) of the Hindu Minority and Guardianship
Act, 1956, which postulates that the custody
of an infant or a child of tender age, should be
given to his/her mother unless the father
discloses cogent reasons which indicate that
if the guardianship of the child is given to the
mother, the child's welfare could be in
jeopardy. The said provision carves out an
exception of custody, in contradiction to
guardianship, and then specifies that the
custody should be given to the mother so
long as the child is below 5 years of age.

21. In the present case the uncontested
facts are as follows:-

1. The age of ''D' at the time of
filing of the writ petition was below 5
years.

2. ''M' and ''D' were living
together since their marriage in February
2 All. Shigorika Singh Vs. Dr. Abhinandan Singh & Ors.
91
2014 till December 2018 when they
separated.

3. After the separation, ''D' and
''M' were living together at the parental
home of ''M', till 10/01/2020 when ''D' was
taken away by ''F' without consent of ''M'.

4.
During
the
period
of
separation, ''F' regularly visited and met ''D'
at the parental home of ''M'.

5. ''M' is pursuing her MDS from
Lucknow while ''F' is pursuing MD (Neuro
Psychiatry) from Pondicherry.

6.
''D'
is
living
with
her
grandparents at Lucknow and is studying in
La Martinere Girls College, Lucknow.

7. ''D' appeared before this court
and stated that she was equally happy and
comfortable with her mother as well as
with her grandparents.

22. In the aforesaid circumstances, it is
established and accepted by all the parties
that the mother and daughter were living
together after their separation. On 10.01.2020
the daughter was taken out of the custody of
the mother by the father without her consent.
This taking out of the custody of the mother,
without any judicial intervention is clearly
arbitrary and illegal and cannot have the
sanction of law. In case, ''F' wanted the
custody of ''D' and was of the opinion that
''M' was not taking care of ''D' or that she was
negligent in her upbringing, then it was open
for him to move an appropriate application
under the Guardian and Wards Act, 1890, or
Hindu minority and Guardianship Act and
should have placed all the facts before the
court, awaiting the outcome of the same,
rather than forcefully and unilaterally taking
the custody of ''D'. When the statute provides
for a mechanism for the resolution of a
dispute, then it was necessary for ''F' to
invoke the same, and without taking recourse
to law and in taking the custody of ''D', the
acts of ''F' are held to be absolutely illegal and
without the sanction of law.

23. Considering the facts of the case, in
light of the provisions contained in section 6
and
25
of
the
Hindu
Minority
&
Guardianship Act it becomes clear that, the
right of the father to be the guardian of the
minor is preserved, but it carves out an
exception of interim custody, in contradiction
of guardianship, and specifies that custody
should be given to the mother so long as the
child was below 5 years of age. It is open for
the father to rebut the presumption and prove
that mother is somehow incapacitated from
acting as the Guardian even when the girl
child was below 5 years. The father in his
counter affidavit has not placed any
substantial material from which it can be
established that the mother is unsuitable in
any regard.

24. The other aspect which deserves
to be noticed is that when the father had
acquiesced to the custody of his daughter
with her mother, coupled with the fact that
he constantly met his daughter during this
period and he never objected to the said
arrangement,
therefore,
in
such
circumstances, he cannot unilaterally be
permitted to change the settled position and
take the custody of his minor daughter
without the consent of the mother. This
apart from being illegal and arbitrary, can
also be very traumatic for the child who is
already
witnessing
the
acrimonious
relationship between her parents. In case if
this unilateral act of taking into custody of
the minor is permitted, it may lead to a very
unsavory situation where the Guardian in
whose custody the minor is, would be
reluctant to even permit visitation rights to
the other guardian, as there will always
remain a real and apparent threat of
92 INDIAN LAW REPORTS ALLAHABAD SERIES
deprivation of the custody by the other
guardian.

25. With regard to restitution of
custody of minor who is removed from the
custody of a guardian, section 25 of the
Guardians and Wards Act 1890, provides as
under:-

"(1) If a ward leaves or is
removed from the custody of a guardian of
his person, the Court, if it is of opinion that
it will be for the welfare of the ward to
return to the custody of his guardian, may
make an order for his return and for the
purpose of enforcing the order may cause
the ward to be arrested and to be delivered
into the custody of the guardian.

(2) For the purpose of arresting
the ward, the Court may exercise the power
conferred on a Magistrate of the first class
by section 100 of the Code of Criminal
Procedure, 1882 (10 of 1882)1.

(3) The residence of a ward
against the will of his guardian with a
person who is not his guardian does not of
itself terminate the guardianship."

26. In the facts of the present case,
it was always open for the father to move
an appropriate application for being
appointed as a guardian and could have
also moved an appropriate application
under section 25 of Guardians and Wards
Act 1956 for being securing custody of
''D'. In the counter affidavit filed by ''F',
he has raised objection regarding the
maintainability of the petition stating that
''M'
should
follow
the
procedure
established by law. ''F' who has himself,
without consent of ''M' taken ''D' out of
the lawful custody of her mother, cannot
be permitted to raise such an argument,
especially, when he himself chose not to
follow the procedure established by law,
and unilaterally took ''D' out of the lawful
custody of ''M'.

27. This court in the case of Vijai
Kumar Sharma and others vs State of
U.P. and others I(1991)DMC 244 while
considering whether the father in taking a
minor out of the custody of his mother
would be guilty under Section 364 of the
Indian Penal Code, this Court held that
the father cannot be held guilty for
abduction as it cannot be said that the
child had been removed from the custody
of the natural guardian but held that the
conduct of the accused persons in taking
away the child without consent of the
mother amounted to cruelty as defined
under section 498A IPC. Such an act
undoubtly disrupts the peaceful life of the
minor
and
militates
against
his/her
healthy mental growth, and therefore this
court exercising the jurisdiction of parens
patriae where it is the bounden duty of
the Court to protect the interest of the
minor, and accordingly the act of ''F' in
taking ''D' out of custody of ''M' is held to
be illegal.

28. The Hon'ble Supreme Court while
considering this aspect in the case of Nil
Ratan Kundu v. Abhijit Kundu, (2008) 9
SCC 413 at page 425 has observed

"42. In Rosy Jacob v. Jacob A.
Chakramakkal [(1973) 1 SCC 840] , this
Court held that the object and purpose of
the 1890 Act is not merely physical custody
of the minor but due protection of the rights
of the ward's health, maintenance and
education. The power and duty of the court
under the Act is the welfare of the minor. In
considering the question of welfare of a
minor, due regard has of course to be given
to the right of the father as natural
guardian, but if the custody of the father
2 All. Shigorika Singh Vs. Dr. Abhinandan Singh & Ors.
93
cannot promote the welfare of the children,
he may be refused such guardianship. The
Court further observed that merely because
there is no defect in his personal care and
his attachment for his children, which every
normal parent has, he would not be granted
custody. Simply because the father loves his
children and is not shown to be otherwise
undesirable does not necessarily lead to the
conclusion that the welfare of the children
would be better promoted by granting their
custody to him. The Court also observed
that children are not mere chattels, nor are
they toys for their parents. The absolute
right of parents over the destinies and the
lives of their children, in the modern
changed social conditions, must yield to the
consideration of their welfare as human
beings so that they may grow up in a
normal balanced manner to be useful
members of society and the guardian court
in case of a dispute between the mother and
the father, is expected to strike a just and
proper balance between the requirements of
the welfare of the minor children and the
rights of their respective parents over
them."

29. The mother in the petition has
stated that she has taken good care of ''D' as
any mother would, and also admitted her to
Pre-Schooling Institute "Footprints" where
''D' performed very well. That apart from
the mother who is entitled to the custody of
minor daughter till the age of 5 years, does
not dis-entitle her to continue with the
custody even after attaining the age of 5
years where it can be shown that it is in the
best interest and welfare of the child. In the
counter affidavit, ''F' has levelled certain
allegations, none of which could persuade
this court from coming to a conclusion that
''M' was in any manner dis-entitled or
incapacitated from being given the custody
of ''D'. The medical prescriptions attached
with the counter affidavit wherein it has
sought to be established that ''D' was
suffering from "bronco pneumonia" also
does not inspire much confidence, as the
consulting Doctor is closely related to ''F',
the fitness certificate is undated, and even
otherwise it is difficult to fathom that the
mother who is herself is a doctor would not
venture to medically neglect her minor
daughter.

30. ''M' being a qualified doctor, and
also pursuing her MDS in Lucknow and is
living with her parents can very well look
after the interests and welfare of ''D'. ''M'
who is pursuing her MDS would also be
receiving stipend/salary during this period
from which she can adequately support ''D'.

31. This court also notices the fact
that the custody of ''D' is actually with Mr
Anil Singh, her grandfather at Lucknow
and not with ''F' as he is away, studying in
Pondicherry.
Even
during
the
court
hearings Mr Anil Singh has attended the
hearings in absence of ''F'. Even when the
court required presence of ''D', she was
brought to Court by Mr Anil Singh. Mr
Anil Singh, who is the grandfather of ''D'
does not have any legal right to the custody
of ''D' and cannot be entitled to continue
with the custody of ''D' as, firstly he has not
approached
this
court
claiming
guardianship of ''D', and secondly the
mother being a natural guardian is legally
entitled to the custody of ''D'.

32. This court is of the considered
opinion that one parent single-handedly
deciding the physical
and emotional
environment of a child might not result as
the best option for the child. If an
arrangement was agreed upon by the
parents and if one of them is unhappy with
such an arrangement, they must approach
94 INDIAN LAW REPORTS ALLAHABAD SERIES
the court and not stealthily take away the
child. There should not be an absolute right
of either parent deciding the destiny of the
child, importance has to be given to the
best interest of the child.

33. Considering the above facts
and circumstances, this Court is of the
considered opinion that the custody of
''D' with ''F' and his father Mr Anil
Singh is held to be illegal, and
consequently,
the
writ
petition
is
allowed with a direction that the
custody of ''D' should be immediately
handed over to ''M'.

34. It is clarified that this order
shall not preclude any of the parties to
exercise
their
statutory
right
as
provided for under the Guardians and
Wards Act or Hindu Minority and
Guardianship Act, 1956.

35. Looking into the fact that ''D'
has remained in the custody of ''F' and
his father Mr Anil Singh, it is provided
that ''F' shall have visitation rights to
meet ''D' on every Saturday or Sunday
at the convenience of ''M'. He shall take
''D' at 10 AM on the given day and
return her by 4.00 PM on the same day.
In case custody of ''D' is not restored by
4.00 PM as provided, then on the
request of ''M' respondent No.5 is
directed to immediately intervene and
restore the custody of ''D' to ''M'.

36. Mr Anil Singh may also meet ''D'
on any one day on alternative weekends, as
per convenience of ''M', in the presence of
''M'. ''M' shall also permit and make
necessary
arrangements
for
video
conferencing
for
five
minutes
every
alternative day with ''F' or his father.
----------
(2021)02ILR A94
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021 &
29.01.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE VIVEK AGARWAL, J.

Criminal Misc. Writ Petition No. 10974 of 2020
with
Criminal Misc. Writ Petition No. 13521 of 2020
with
Criminal Misc. Writ Petition No. 14300 of 2020

Jeeshan @ Jaanu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Abou Sofian Usmani, Sri Upendra
Upadhyay, Sri Saumitra Dwivedi, Sri Vinay
Saran (Amicus)

Counsel for the Respondents:
A.G.A.

Criminal Law-Petitioners-real brothers and
claim to be tax payees-aggrieved by published
list of top 10 criminals for the year 2020 and
opening of history sheet-Policy issued after
video conferencing convened by the Chief
Minister-to prepare list of top 10 criminals at
each police station-to keep tab on their
activity-policy is not illegal-but putting such
list on fly sheet board is substantive ultraviresand against Regulation 287.

W.P. allowed. (E-7)

List of Cases cited:-

1. Maneka Gandhi Vs U.O.I., AIR 1978 SC 59,

2. Re Banners Placed at Roadside in the City of
Lucknow Vs St. of U.P. (2020) 4 ADJ 386

3. Mehmood Nayyar Azam Vs St. of Chhatt. &
ors. , (2012) 8 SCC 1