# Shiv Singh & Anr v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 2509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Habeas Corpus Writ Petition No. 146 of 2024
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-singh-anr-v-state-of-u-p-ors-52077
- **Pages:** 5

## Headnote

A. Family Law - Child custody - The writ of
habeas corpus, as is legally well settled, is
a prerogative writ and an extraordinary
remedy. It is a writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause
being shown. (Para 9)

The role of the High Court in examining
cases of custody of a minor, in a petition
for a writ of habeas corpus, would have to
be on the touchstone of the principle of
parens
patriae
jurisdiction
and
the
paramount consideration would be the
welfare of the child. In such cases the matter
would have to be decided not solely by reference
to the legal rights of the parties but on the
predominant criterion of what would best serve
the interest and welfare of the minor. (Para 10,
14)
B. In cases of child custody, a petition
seeking a writ of habeas corpus may be
entertained
in
a
case
where
it
is
established that the custody of the child is
illegal or without authority. There may
also be cases where the custody of the
child has been forcibly altered, which
renders the present custody illegal, and in
the said circumstance, the Court may be
persuaded to issue a writ of habeas
corpus. (Para 7, 8, 23)

In a child custody matter, a writ of habeas
corpus would not be entertainable unless
it is established that the detention of the
minor child by the parent or others is
illegal and without authority of law. (Para
23)

In a petition for a writ of habeas corpus
concerning a minor child, the Court, in a given
case, may direct to change the custody of the
child or decline the same keeping in view the
attending facts and circumstances. For the said
purpose it would be required to examine
whether the custody of the minor with the
private respondent, who is named in the
petition, is lawful or unlawful. (Para 19)

There is absolutely no material on record, which
may suggest that the custody of the petitioner
no.1 (corpus) was taken away by the
respondent no.5, from the petitioner no.2, at
any point of time. The question of the custody,
therefore, being illegal, would not arise in the
facts of the case. (Para 20)

In a case such as this, where the custody of the
minor child is with his biological mother ever
since birth and there is no material to suggest
that the custody was altered illegally, at any
point of time, it may be presumed that the
custody of the child with his mother is not, prima
facie, unlawful. (Para 21)

C. In a writ court, where rights are
determined on the basis of affidavits, in a
case where the court is of a view that a
detailed enquiry would be required, it may
decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the appropriate statutory forum.
(Para 16, 24)
2510 INDIAN LAW REPORTS ALLAHABAD SERIES
It would only be in an exceptional situation that
the custody of a minor may be directed to be
taken away from the mother for being given to
any other person-including father of the child, in
exercise of writ jurisdiction. This would be so
also for the reason that the other parent, in the
present case, the father, can take resort to the
substantive statutory remedy in respect of his
claim regarding custody of the child. (Para 22)

Petitioners have not disputed the aforesaid legal
and factual position, and the only grievance,
sought to be raised, is w.r.t. a claim for visitation
rights on behalf of the father. (Para 24, 25)

Petition dismissed. (E-4)

Precedent followed:

Master Prakhar @ Palash & anr. Vs St. of U.P. &
ors., (2022) ILR 5 All 1459 (Para 7)

## Text

5 All. Shiv Singh & Anr. Vs. State of U.P. & Ors.
2509
13. However, the respondentInsurance Company is at liberty to recover
the deposited enhanced amount from the
respondent no.1, who is owner of the
offending vehicle.

14. No order as to cost.
----------
(2024) 5 ILRA 2509
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 146 of 2024

Shiv Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Akshay Raghuvanshi, Pulkit Srivastava, Ritesh
Kumar Singh, Shivendra Singh

Counsel for the Respondent:
G.A.

A. Family Law - Child custody - The writ of
habeas corpus, as is legally well settled, is
a prerogative writ and an extraordinary
remedy. It is a writ of right and not a writ
of course and may be granted only on
reasonable ground or probable cause
being shown. (Para 9)

The role of the High Court in examining
cases of custody of a minor, in a petition
for a writ of habeas corpus, would have to
be on the touchstone of the principle of
parens
patriae
jurisdiction
and
the
paramount consideration would be the
welfare of the child. In such cases the matter
would have to be decided not solely by reference
to the legal rights of the parties but on the
predominant criterion of what would best serve
the interest and welfare of the minor. (Para 10,
14)
B. In cases of child custody, a petition
seeking a writ of habeas corpus may be
entertained
in
a
case
where
it
is
established that the custody of the child is
illegal or without authority. There may
also be cases where the custody of the
child has been forcibly altered, which
renders the present custody illegal, and in
the said circumstance, the Court may be
persuaded to issue a writ of habeas
corpus. (Para 7, 8, 23)

In a child custody matter, a writ of habeas
corpus would not be entertainable unless
it is established that the detention of the
minor child by the parent or others is
illegal and without authority of law. (Para
23)

In a petition for a writ of habeas corpus
concerning a minor child, the Court, in a given
case, may direct to change the custody of the
child or decline the same keeping in view the
attending facts and circumstances. For the said
purpose it would be required to examine
whether the custody of the minor with the
private respondent, who is named in the
petition, is lawful or unlawful. (Para 19)

There is absolutely no material on record, which
may suggest that the custody of the petitioner
no.1 (corpus) was taken away by the
respondent no.5, from the petitioner no.2, at
any point of time. The question of the custody,
therefore, being illegal, would not arise in the
facts of the case. (Para 20)

In a case such as this, where the custody of the
minor child is with his biological mother ever
since birth and there is no material to suggest
that the custody was altered illegally, at any
point of time, it may be presumed that the
custody of the child with his mother is not, prima
facie, unlawful. (Para 21)

C. In a writ court, where rights are
determined on the basis of affidavits, in a
case where the court is of a view that a
detailed enquiry would be required, it may
decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the appropriate statutory forum.
(Para 16, 24)
2510 INDIAN LAW REPORTS ALLAHABAD SERIES
It would only be in an exceptional situation that
the custody of a minor may be directed to be
taken away from the mother for being given to
any other person-including father of the child, in
exercise of writ jurisdiction. This would be so
also for the reason that the other parent, in the
present case, the father, can take resort to the
substantive statutory remedy in respect of his
claim regarding custody of the child. (Para 22)

Petitioners have not disputed the aforesaid legal
and factual position, and the only grievance,
sought to be raised, is w.r.t. a claim for visitation
rights on behalf of the father. (Para 24, 25)

Petition dismissed. (E-4)

Precedent followed:

Master Prakhar @ Palash & anr. Vs St. of U.P. &
ors., (2022) ILR 5 All 1459 (Para 7)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Akshay Raghuvanshi,
learned counsel for the petitioners and Sri
Pankaj Saxena, learned AGA-I appearing
for the State-respondents.

2. Pleadings in the petition
indicates that the respondent no.5, wife of
the petitioner no.2, went back to her
maternal home, on 10.08.2018, shortly after
her marriage with the petitioner no.2, on
03.05.2018. The respondent no.5 is stated
to have been pregnant at that point of time,
and she was blessed with a baby boy on
11.01.2019.

3. It is submitted that during this
period, the respondent no.5 throughout
stayed at her maternal home, and the child
was born during the period of her stay at her
maternal home.

4. It has also been pleaded that the
respondent no.5, after birth of the petitioner
no.1 (corpus), stayed at her maternal home,
and the child has been under her custody
continuously.

5. A case is sought to be set up that
the petitioner no.2, father of the petitioner
no.1, attempted to meet his son on a number
of occasions, but has not been permitted to
do so by his father-in-law, respondent no.4.

6. Learned AGA-I pointed out that
the petitioner no.2 is stated to have left her
matrimonial home, in the month of August,
2018, and thereafter, the petitioner no.1
(corpus) was born on 11.01.2019, while the
mother was at her maternal home, and since
then the infant is continuously under the
custody of her mother; accordingly, the
custody of the petitioner no.1 (corpus), a
minor child, with his mother, cannot, prima
facie, be stated to be illegal and the present
petition seeking a writ of habeas corpus
would not be entertainable.

7. Counsel for the petitioner has
sought to controvert the aforesaid assertion
by placing reliance upon a decision in
Master Prakhar @ Palash and another
Vs. State of UP and others1, to contend
that in a child custody matter, a petition
filed by a parent, seeking a writ of habeas
corpus would be entertainable.

8. There can be no quarrel with
the aforesaid proposition that in cases of
child custody, a petition seeking a writ of
habeas corpus may be entertained in a
case where it is established that the
custody of the child is illegal or without
authority. There may also be cases where
the custody of the child has been forcibly
altered, which renders the present custody
illegal, and in the said circumstance, the
Court may be persuaded to issue a writ of
habeas corpus.
5 All. Shiv Singh & Anr. Vs. State of U.P. & Ors.
2511
9. The writ of habeas corpus, as is
legally well settled, is a prerogative writ
and an extraordinary remedy. It is a writ of
right and not a writ of course and may be
granted only on reasonable ground or
probable cause being shown.

10. The principal duty of the Court
in such matters is to ascertain whether the
custody of the child is unlawful and 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. The
principle is well settled that in such matters
the welfare of the child is of paramount
consideration.

11. In child custody matters,
habeas corpus proceedings may not be
utilized to justify or examine the legality of
the custody. The power of the Court in
granting the writ is qualified only in cases
where detention of a minor is by a person
not entitled to his/her legal custody. For the
exigence of a writ, it would be required to
be proved that the detention of the minor
child is illegal and without any authority of
law, and that the welfare of the child
requires that the present custody should be
changed.

12. In an application seeking a
writ of habeas corpus for custody of
minor child, as is the case herein, the
principal consideration for the court
would be to ascertain whether the custody
of the child can be said to be unlawful and
illegal and whether his welfare requires
that the present custody should be
changed and the child should be handed
over in the care and custody of somebody
else other than in whose custody he
presently is.

13. Proceedings in the nature of
habeas corpus may not be used to examine
the question of the custody of a child. The
prerogative writ of habeas corpus, is in the
nature of extraordinary remedy, and the
writ is issued, where in the circumstances
of a particular case, the ordinary remedy
provided under law is either not available
or is ineffective. The power of the High
Court, in granting a writ, in child custody
matters, may be invoked only in cases
where the detention of a minor is by a
person who is not entitled to his/her legal
custody.

14. The role of the High Court in
examining cases of custody of a minor, in a
petition for a writ of habeas corpus, would
have to be on the touchstone of the principle
of parens patriae jurisdiction and the
paramount consideration would be the
welfare of the child. In such cases the
matter would have to be decided not solely
by reference to the legal rights of the parties
but on the predominant criterion of what
would best serve the interest and welfare of
the minor.

15. In a given case, while dealing
with a petition for issuance of a writ of
habeas corpus concerning a minor child,
directions may be issued for return of the
child or the Court may decline to change the
custody of the child, keeping in view all the
attending facts and circumstances and
taking into view the totality of the facts and
circumstances of the case brought before
the Court; the welfare of the child being the
paramount consideration.

16. In a case where facts are
disputed and a detailed inquiry is required,
the Court may decline to exercise its
extraordinary jurisdiction and may direct
2512 INDIAN LAW REPORTS ALLAHABAD SERIES
the parties to approach the appropriate legal
forum.

17. In the facts of the present case,
it is undisputed that the respondent no.5 had
left her matrimonial home soon after her
marriage, and the petitioner no.1 (corpus)
was born during the period of her stay at her
maternal home on 11.01.2019.

18. It is also not disputed that the
petitioner (corpus) has throughout been
under the custody of his mother, who has
continuously stayed at her maternal home,
and is presently, also, staying there.

19. In a petition for a writ of habeas
corpus concerning a minor child, the Court,
in a given case, may direct to change the
custody of the child or decline the same
keeping in view the attending facts and
circumstances. For the said purpose it
would be required to examine whether the
custody of the minor with the private
respondent, who is named in the petition, is
lawful or unlawful.

20. There is absolutely no material
on record, which may suggest that the
custody of the petitioner no.1 (corpus) was
taken away by the respondent no.5, from
the petitioner no.2, at any point of time. The
question of the custody, therefore, being
illegal, would not arise in the facts of the
case.

21. In a case such as this, where
the custody of the minor child is with his
biological mother ever since birth and
there is no material to suggest that the
custody was altered illegally, at any point
of time, it may be presumed that the
custody of the child with his mother is
not, prima facie, unlawful.

22. It would only be in an
exceptional situation that the custody of a
minor may be directed to be taken away
from the mother for being given to any
other person-including father of the child,
in exercise of writ jurisdiction. This
would be so also for the reason that the
other parent, in the present case, the
father, can take resort to the substantive
statutory remedy in respect of his claim
regarding custody of the child.

23. In a child custody matter, a
writ of habeas corpus would not be
entertainable unless it is established that
the detention of the minor child by the
parent or others is illegal and without
authority of law.

24. In a writ court, where rights
are determined on the basis of affidavits,
in a case where the court is of a view that
a detailed enquiry would be required, it
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the appropriate statutory forum.

25. Counsel for the petitioners
has not disputed the aforesaid legal and
factual position, and the only grievance,
sought to be raised, is with regard to a
claim for visitation rights on behalf of the
father.

26. The petition stands dismissed
accordingly.

27. Needless to say that the
dismissal of the writ petition would not
preclude the petitioner no.2 from agitating
his right with regard to guardianship and
custody, and also seeking visitation rights,
by
initiating
appropriate
proceedings
before the proper statutory forum.
----------
5 All. Ayra Khan & Anr. Vs. State of U.P. & Ors.
2513
(2024) 5 ILRA 2513
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 797 of 2023

Ayra Khan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Akhilesh Kumar Tiwari

Counsel for the Respondent:
G.A.

A.
Family
Law
-
Guardians and Wards Act, 1890-
Section
17-
Mulla, Principles of Mahomedan Law, 22nd
Edition- Chapter XVIII - A writ of habeas
corpus is prerogative process for securing
the liberty of the subject by affording
effective means of immediate release
from an illegal or improper detention. The
writ also extends its influence to restore
the custody of a minor to his guardian
when wrongfully deprived of it. The
detention of a minor by a person who is
not entitled to his legal custody would
have to be treated as equivalent to illegal
detention for the purpose of granting a
writ directing custody of the minor child.
(Para 10)

In a petition seeking issuance of a writ of habeas
corpus relating to the custody of a minor child,
the principle duty of the Court would be to
ascertain whether the custody of the child is
unlawful or illegal and whether the welfare of
the child requires that the present custody
should be changed and the child be handed over
to the care and custody of some other person.
In doing so, the paramount consideration would
undoubtedly be the welfare of the child and the
role of the High Court in examining such cases
would have to be on the touchstone of principles
of parens patriae jurisdiction. (Para 16)

Habeas corpus proceedings would not ordinarily
lie to justify or examine the legality of the
custody of the minor child, and the question in
this regard would have to be addressed by the
Court in exercise of its discretionary jurisdiction.
The prerogative writ of habeas corpus, is in the
nature of an extraordinary remedy, and is to be
issued
taking
into
consideration,
the
circumstances of a particular case. (Para 17)

In child custody matters, the remedy
ordinarily lies under the statutory law, or
the personal law, as applicable in the facts
of the case; however, in cases which
justify the exercise of the extraordinary
discretionary jurisdiction u/Article 226, a
writ of habeas corpus would be issued
where
it
is
demonstrated
that
the
detention of minor child, is illegal or
without any authority of law. (Para 18)

In the present case, parties have not disputed
the legal position that in the case of a female
child of 2-1/2 years, her biological mother would
be legally entitled to her custody as per the
personal law. The detention of the petitioner no.
1
(corpus)
by
the
respondent
no.
5
(grandmother), in the said circumstances,
cannot, prima facie, be legally supported. (Para
22)

In the entirety of the facts and circumstances of
the case, it would be in the paramount interest
of the petitioner no. 1 (corpus) that the interim
arrangement, as per terms of the previous order
dated 16.04.2024, permitting the petitioner-
corpus to go along with the petitioner no. 2, her
biological mother, be continued. (Para 23)

B. The provisions of the personal law are
to be applied consistently with the
provisions of the GWA, and insofar as the
question of custody is concerned, the
rights of parties in the present case, are to
be governed by the personal law. Section 17
of the GWA relates to matters to be considered
by the court in appointing a guardian, and in
terms thereof it is provided that the court while
deciding the question of guardianship of a
minor, shall, as far as possible, do so