# Shiva & Anr v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-01
- **Case number:** Habeas Corpus Writ Petition No. 988 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiva-anr-v-state-of-u-p-ors-46877
- **Pages:** 10

## Headnote

(A) Civil Law - Guardians and Wards Act,
1890 - Section 17 - Writ of habeas corpus
- Custody of minor child - minor's custody
between parents - whenever custody is to
be entrusted to a guardian, natural or
otherwise - welfare of the minor is of
paramount importance - Hindu Minority
and Guardianship Act, 1956 - Section 6(a)
- Natural guardians of a Hindu minor - 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 - issue
- about custody and not guardianship -
welfare
of
young
children
is
better
ensured by the mother's caring hand than
a father's equally concerned supervision.
(Para - 12,16,17)

Wife and her husband are an estranged couple -
two children - both minors - Both the children
currently stay with their father, along with their
grandmother and their father's brother -
mother says that the two children ought to stay
with her in order to secure their welfare better -
minors' father, their grandmother and their
uncle, resist this claim - It is this tussle over the
3 All. Shiva & Anr. Vs. State of U.P. & Ors.
367
minors' custody that has led wife to institute
these proceedings for the issue of a writ in the
nature of habeas corpus.

HELD: - Minors, ought to remain in their
mother's custody and care. At the same time,
father cannot be deprived of their company
altogether, and the minors, his paternal
affection. This can be ensured by ordering a
suitable schedule of visitation for the father,
where he could meet the minors and spend time
with them, as they stay with their mother. The
rule nisi dated 19.10.2020 is made absolute in
the terms that the custody of two minors, shall
be entrusted by father to mother within a week
of delivery of this judgment at mother's
home.(Para - 30,32)

Habeas Corpus petition allowed. (E-6)

List of Cases cited: -

## Text

366 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. and 3 others3 this Court after
referring
to
the
authoritative
pronouncements in the case of Nithya
Anand Raghvan vs. State (NCT of Delhi)
and another4, Sayed Saleemuddin vs.
Dr. Rukhsana and others5 and Tejaswini
Gaud and others vs. Shekhar Jagdish
Prasad Tewari and others6, has held that
in an application seeking a writ of habeas
corpus for custody of a minor child, 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 the welfare of the child
requires that the present custody should be
changed and the child should be handed
over in the care and custody of someone
else other than in whose custody the child
presently is. It was held that the pregorative
writ of habeas corpus, is in the nature of
extraordinary remedy, which may not be
used to examine the question of custody of
a child except where in the circumstances
of a particular case, it can be held that the
custody of the minor is illegal or unlawful.

10. Counsel for the petitioners has not
been able to demonstrate as to how, in the
facts and circumstances of the present case,
the custody of the petitioner nos. 2 and 3
with their maternal grandparents can be
said to be illegal or unlawful so as to
pursuade
this
Court
to
exercise
its
extraordinary prerogative jurisdiction for
issuing a writ of habeas corpus.

11. At this stage, learned counsel for
the petitioners makes a prayer to withdraw
the petition and states that the other
remedies available to him under law with
regard to the custodial rights would be
pursued.

12. The petition stands, accordingly,
dismissed.
----------
(2021)03ILR A366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2021

BEFORE

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

Habeas Corpus Writ Petition No. 988 of 2019

Shiva & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manvendra Singh, Sri Mazhar Ullah, Sri
Shrawan Kumar Ojha

Counsel for the Respondents:
A.G.A., Ajay Kumar Srivastava

(A) Civil Law - Guardians and Wards Act,
1890 - Section 17 - Writ of habeas corpus
- Custody of minor child - minor's custody
between parents - whenever custody is to
be entrusted to a guardian, natural or
otherwise - welfare of the minor is of
paramount importance - Hindu Minority
and Guardianship Act, 1956 - Section 6(a)
- Natural guardians of a Hindu minor - 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 - issue
- about custody and not guardianship -
welfare
of
young
children
is
better
ensured by the mother's caring hand than
a father's equally concerned supervision.
(Para - 12,16,17)

Wife and her husband are an estranged couple -
two children - both minors - Both the children
currently stay with their father, along with their
grandmother and their father's brother -
mother says that the two children ought to stay
with her in order to secure their welfare better -
minors' father, their grandmother and their
uncle, resist this claim - It is this tussle over the
3 All. Shiva & Anr. Vs. State of U.P. & Ors.
367
minors' custody that has led wife to institute
these proceedings for the issue of a writ in the
nature of habeas corpus.

HELD: - Minors, ought to remain in their
mother's custody and care. At the same time,
father cannot be deprived of their company
altogether, and the minors, his paternal
affection. This can be ensured by ordering a
suitable schedule of visitation for the father,
where he could meet the minors and spend time
with them, as they stay with their mother. The
rule nisi dated 19.10.2020 is made absolute in
the terms that the custody of two minors, shall
be entrusted by father to mother within a week
of delivery of this judgment at mother's
home.(Para - 30,32)

Habeas Corpus petition allowed. (E-6)

List of Cases cited: -

1. Hariharan (Ms) & anr. Vs R.B.I. & anr., (1999) 2
SCC 228

2. Amit Bery Vs Sheetal Beri, AIR 2003 All 18

3. Roxann Sharma Vs Arun Sharma, (2015) 8 SCC
318

4. Aharya Baranwal & 3 ors. Vs St. of U.P. & 2 ors.,
Habeas Corpus W.P. No.3921 of 2018

5. Master Atharva (Minor) & anr. Vs St. of U. P. & 7
ors., 2020 (143) ALR 332

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

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

1. Smt. Pushpa Devi @ Mahi and her
husband, Devendra Kumar, are an estranged
couple. They have two children, Shiva and
Suraj, both minors. Shiva is aged five years old,
whereas Suraj is three and a half years in age.
Both the children currently stay with their
father, Devendra Kumar, along with their
grandmother, Smt. Neelam and their father's
brother, Dhan Singh. The mother says that the
two children ought to stay with her in order to
secure their welfare better. Devendra Kumar,
the minors' father, Smt. Neelam, their
grandmother and Dhan Singh, their uncle, resist
this claim. It is this tussle over the minors'
custody that has led Smt. Pushpa Devi @ Mahi
to institute these proceedings for the issue of a
writ in the nature of habeas corpus.

2. This petition was instituted on 31st of
October, 2019. The proceedings in this case
commenced on 05.11.2019, when notice was
issued to Devendra Kumar to produce the two
minors before the Court on 04.12.2019. The case
was adjourned on 04.12.2019, awaiting a
compliance report from the Chief Judicial
Magistrate, Shahjahanpur. On 02.01.2020, the
Court recorded that notice had been served upon
respondent no.4 personally, but the minors have
not been produced. The Chief Judicial Magistrate
was directed to ensure the minors' presence,
attended with a direction to the Senior
Superintendent of Police, Shahjahanpur to
facilitate the process. On 21.01.2020, which was
the date fixed for the return vide order dated
02.01.2020, the minors were produced, but their
personal appearance was exempted until ordered
otherwise. The case came up again on 10.02.2020
and was adjourned to 17.02.2020. There was then
an adjournment from 17.02.2020 to 25.02.2020
and from 25.02.2020 to 04.03.2020. It must be
remarked here that all proceedings until
19.10.2020 were taken without a formal
admission of the petition to hearing.

3. On 19.10.2020, when the petition came
up, a detailed order was passed, admitting the
petition
to
hearing
and
ordering
the
Superintendent of Police, Shahjahanpur to cause
the minors to be produced from the custody of
respondent nos.4, 5 and 6 on the date of return,
which was indicated to be 22.10.2020. It was also
ordered that Devendra Kumar, the minors' father
and Smt. Pushpa Devi @ Mahi, the minors'
368 INDIAN LAW REPORTS ALLAHABAD SERIES
mother, who had effectively petitioned on behalf
of the minors, shall also remain present in person.

4. On 22.10.2020, this Court after
considering the overall circumstances of
the case and particularly, the fact that the
minors' estranged parents were a young
couple, thought it to be a possibility that
their differences were reconciled. This the
Court thought would best serve not only the
interest of the estranged spouses, but the
minors too. Bearing this in mind, both
parties were referred to the mediation of the
Allahabad High Court Mediation and
Conciliation Centre vide order dated
22.10.2020.

5. The parties appeared before the
Centre and two sessions were held on
22.10.2020 and 23.02.2020. The Centre's
report dated 23.10.2020 made in Mediation
Case
no.922
of
2020
indicates
the
following :

"Mediation
Completed.
No
agreement."

6. The attempt to reconcile parties
being not successful, the matter was taken
up on 09.11.2020, but hearing could not
proceed, as the minors were not produced.
Their parents were also not present.
Accordingly, by an order dated 09.11.2020,
the Superintendent of Police, Shahjahanpur
was again ordered to cause the minors to be
produced on 11.11.2020. The case was
heard on 11.11.2020 in the presence of
Devendra Kumar, the minors' father and
Smt. Pushpa Devi @ Mahi, their mother,
and judgment was reserved.

7. It must be remarked here that no
counter affidavit was filed on behalf of
respondent nos.4, 5 & 6, though Mr. Ajay
Kumar
Srivastava,
learned
Advocate
appeared on their behalf. The facts before
the Court are those, that are set out in the
petition. There is no affidavit in rebuttal,
though Smt. Pushpa Devi's claim has been
contested by respondent no. 4 at the
hearing.

8. Heard Mr. Mazharullah, learned
Counsel for the petitioners, Mr. Ajay
Kumar
Srivastava,
learned
Counsel
appearing for the respondent nos.4, 5 and 6
and Mr. Jhamman Ram, learned A.G.A.
appearing on behalf of the State.

9. Smt. Pushpa Devi @ Mahi and
Devendra Kumar were married about five
years ago. According to Pushpa, she was
ill-treated by Devendra Kumar, her mother
and Devendra's brother, for the past two
years. She was forcibly detained at her inlaws' place and not permitted to go home
and
meet
her
parents.
Her
mother
underwent a heart surgery. She requested
Devendra, besides respondent nos. 5 and 6,
to permit her to visit her mother. It is
claimed by Pushpa that she was abused and
assaulted by her husband and in-laws. She
was then thrown out of her husband's home
and her two sons, Shiva and Suraj, were
forcibly detained by Devendra and her inlaws. It is alleged that she was asked to pay
her husband and in-laws a sum of Rs.5
lakhs, and upon doing that, she was told,
she could take her sons along with her. She
is said to have gone back to her parents and
informed them about these unpleasant
developments in her life. It is asserted that
Pushpa
and
her
parents
requested
Devendra, his mother and brother to permit
them to meet Pushpa's sons, but that
request was declined. Pushpa then lodged a
complaint with the Superintendent of
Police,
Shahjahanpur
on
11.09.2019,
detailing all that had befallen her. A copy
of this complaint is on record as Annexure
3 All. Shiva & Anr. Vs. State of U.P. & Ors.
369
no.1 to the petition. This complaint did not
elicit any action. Pushpa then approached
the State Women Commission, Lucknow
through a complaint dated 18.09.2019. A
copy of this complaint, bearing an
acknowledgment of receipt from the
Women Commission, is also on record.

10. It also appears that on 06.09.2019,
Pushpa's sister Geeta had laid a complaint
to
the
Superintendent
of
Police,
Shahjahanpur, reporting the matrimonial
violence and offence that Pushpa had
suffered at the hands of her in-laws. A copy
of this complaint of 6th September, 2019 is
also on record. Pushpa also appears to have
complained in the matter to the Chief
Minister on 18.09.2019, a copy whereof
has been annexed to this petition.

11. This Court has perused the
material on record. The short issue
involved in this petition is whether the two
minor children of parties, Shiva and Suraj,
should be relieved from the custody of their
father, Devendra and entrusted to the care
and custody of the mother, while the couple
stay estranged.

12. This Court takes note of the fact that
both Pushpa and Devendra are natural
guardians of the two minors, being their
parents. This is evident from the provisions of
Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 (for short, ''the Act of
1956'), which provide :

"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 step-father and a step-mother."

13. There was at one time some cavil
about the issue that the mother was the
natural guardian after the father and,
therefore, so long as the father was there, he
alone could be regarded as the natural
guardian.

14. The issue here is not about natural
guardianship, but about the custody, which
is different from guardianship. This aspect
of the issue would be addressed a little
later. For the present, it must be remarked
that the natural guardianship of a minor
under Section 6(a) of the Act of 1956 is no
longer held by the father, in preference to
the mother. The mother and the father are
at par as natural guardians of the minor, in
view of the law laid down by the Supreme
Court in Githa Hariharan (Ms) and
another vs. Reserve Bank of India and
another, (1999) 2 SCC 228.

15. As already said, the issue here is
about custody and not guardianship.
Guardianship, natural or otherwise, is more
about the right exercised by a person over a
370 INDIAN LAW REPORTS ALLAHABAD SERIES
minor in relation to his person or property,
while dealing with a third party on the
minor's behalf, or the minor himself.
Custody is something related to the day-today care and supervision of the minor by an
adult.
Normally
and
invariably,
guardianship and custody coalesce, but it
need not always be so. There can be
situations, where custody may be entrusted
to a person other than the guardian,
particularly,
the
natural
guardian
or
between two natural guardians to one of
them.

16. The proviso to Section 6(a) of the
Act of 1956 is a statutory illustration about
this distinction. Under the proviso to
Section 6(a) last mentioned, the custody of
a minor up to the age of five years,
''ordinarily' is to remain with the mother,
notwithstanding the fact that both the father
and the mother are natural guardians. This
principle engrafted in the statute, represents
the precipitate wisdom of generations
amongst mankind, that the welfare of
young children is better ensured by the
mother's caring hand than a father's equally
concerned supervision.

17. There is no cavil by now about the
principle that in deciding who should have
the minor's custody between parents, or for
that matter, whenever custody is to be
entrusted
to
a
guardian,
natural
or
otherwise, welfare of the minor is of
paramount importance. This principle is
also statutorily embodied in Section 17 of
the Guardians and Wards Act, 1890 (for
short, ''the Act of 1890') and Section 13(1)
of the Act of 1956.

18. In so far as young children are
concerned, there is a strong presumption
that the mother is better equipped to ensure
their welfare than the father, though both
the parents may be equally loving and
sacrificing. This presumption in favour of
the mother must be dispelled by cogent
reasons, supported by glaring evidence
about the mother's lack of her natural
ability to better take care of her children.
There could be cases where the mother is
differently abled, which handicaps her
inherently in ensuring her young child's
welfare,
or
accused
of
an
offence,
involving moral turpitude, particularly, the
homicidal death of the child's father, or
proven to be neglectful in her conduct
towards the minor, where she habitually
attends nightclubs and comes back home
late. The last of the contingencies was
acknowledged as good ground to throw off
the presumption in the mother's favour
about a better welfare for the minor in her
hands by this Court in Amit Bery vs.
Sheetal Beri, AIR 2003 All 18.

19. There is no fact pleaded, or
evidence brought on record, to show that
the welfare of the two minors, who are
young boys, aged five years and three and a
half years, would not be better secured by
the mother. Here, the Court may refer to
the guidance of the Supreme Court in
Roxann Sharma vs. Arun Sharma,
(2015) 8 SCC 318, where it has been held:

"13. The HMG Act postulates
that the custody of an infant or a tender
aged child should be given to his/her
mother unless the father discloses cogent
reasons that are indicative of and presage
the likelihood of the welfare and interest of
the child being undermined or jeopardised
if the custody is retained by the mother.
Section 6(a) of the HMG Act, therefore,
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
3 All. Shiva & Anr. Vs. State of U.P. & Ors.
371
carves out the exception of interim custody,
in contradistinction of guardianship, and
then specifies that custody should be given
to the mother so long as the child is below
five years in age. We must immediately
clarify that this section or for that matter
any
other
provision
including
those
contained in the G and W Act, does not
disqualify the mother to custody of the
child even after the latter's crossing the age
of five years."

20. In Roxann Sharma (supra), it
has been further held:

"18. .....There can be no cavil that
when a court is confronted by conflicting
claims of custody there are no rights of the
parents which have to be enforced; the
child is not a chattel or a ball that is
bounced to and fro the parents. It is only
the child's welfare which is the focal point
for
consideration.
Parliament
rightly
thinks that the custody of a child less
than five years of age should ordinarily
be with the Mother and this expectation
can be deviated from only for strong
reasons....."(emphasis by Court)

21. This Court took note of the
mother's special role in ensuring welfare of
a minor child in Habeas Corpus Writ
Petition
No.3921
of
2018,
Aharya
Baranwal and 3 others vs. State of U.P.
and 2 others decided on 22.05.2019. In
Ahrya Baranwal (supra), it was held :

"21. Sometimes, a writ of habeas
corpus is sought for custody of a minor
child. In such cases also, the paramount
consideration which is required to be kept
in view by a writ-Court is 'welfare of the
child'.

22. In Habeas Corpus, Vol. I,
page 581, Bailey states;

"The reputation of the father may
be as stainless as crystal; he may not be
afflicted with the slightest mental, moral or
physical
disqualifications
from
superintending the general welfare of the
infant; the mother may have been separated
from him without the shadow of a pretence
of justification; and yet the interests of the
child may imperatively demand the denial
of the father's right and its continuance with
the
mother.
The
tender
age
and
precarious state of its health make the
vigilance of the mother indispensable to
its proper care; for, not doubting that
paternal anxiety would seek for and
obtain the best substitute which could be
procured yet every instinct of humanity
unerringly proclaims that no substitute
can supply the place of her whose
watchfulness over the sleeping cradle, or
waking moments of her offspring, is
prompted by deeper and holier feeling
than the most liberal allowance of
nurses' wages could possibly stimulate."

23. It is further observed that an
incidental aspect, which has a bearing on
the question, may also be adverted to. In
determining whether it will be for the best
interests of a child to grant its custody to
the father or mother, the Court may
properly consult the child, if it has
sufficient judgment."(emphasis supplied)

22. The issue of a minor's welfare,
where he is a young child, below or about
five years, came up before me for
consideration in the context of Section 6(a)
of the Act of 1956 in Master Atharva
(Minor) and another vs. State of Uttar
Pradesh and 7 others, 2020 (143) ALR
332, where it was held:

"9. A reading of the terms of the
proviso to Section 6 shows that quite apart
from the question of natural guardianship,
372 INDIAN LAW REPORTS ALLAHABAD SERIES
the custody of a minor, who has not
completed the age of five years, is to be
ordinarily with the mother. The only niche,
therefore, so far as the statue goes, is the
word "ordinary". The word "ordinary"
signifies that as a matter of rule, children
up to the age of five years are to be left
with their mothers, but there could be
exceptions as well. Those exceptions could
be where the mother is demonstrably
leading an immoral life or may have
remarried, where in her new home, the
child from her earlier alliance has no place,
or where the mother is convicted of a
heinous offence etc. In the present case, no
such circumstance has been indicated,
much less pleaded and proved so as to
place the mother in that exceptional
category where she may be deprived of the
custody of her young child, who is still well
below the age of five years.

10. It must also be remarked that
even after the child turns five, it is not that
the mother becomes disentitled. She still
would be the best person to tender a child
and groom him into an adult. In this
connection, reference may be made to the
decision of the Supreme Court in Roxann
Sharma v. Arun Sharma, (2015) 8 SCC
318, where it has been held:

"13. The HMG Act postulates
that the custody of an infant or a tender
aged child should be given to his/her
mother unless the father discloses cogent
reasons that are indicative of and presage
the likelihood of the welfare and interest of
the child being undermined or jeopardised
if the custody is retained by the mother.
Section 6(a) of the HMG Act, therefore,
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 contradistinction of guardianship, and
then specifies that custody should be given
to the mother so long as the child is below
five years in age. We must immediately
clarify that this section or for that matter
any
other
provision
including
those
contained in the G and W Act, does not
disqualify the mother to custody of the
child even after the latter's crossing the age
of five years."

23. During the hearing of this matter,
this Court interacted with both the parents,
that is to say, Devendra and Pushpa Devi
@ Mahi. The Court also interacted with the
elder of the two children, to wit, Shiva in
order to ascertain his wishes about the
parent he would like to stay with. This
course of action was adopted because the
Court found that Shiva, though a child of
five years, is a bright child, who could
express an intelligent choice about the
parent he would like to be with. During this
interaction,
this
Court
was
told
by
Devendra that he works as an unskilled
casual labourer, earning a daily-wage to the
tune of Rs. 200 - 300/-. He can garner a
monthly income of Rs.7000 - 8000/-. He
has, amongst his family, besides the
minors, his mother, five nieces and a
brother. He told the Court that the minors
are looked after by his nieces. About the
children's schooling, he said that they used
to attend school before the lock-down, but,
for the present, they were not. He also
candidly accepted the fact that he is
absolutely illiterate. He said that the older
of the two children, Shiva, is five years old
and the younger three and a half years.
Here, this Court must remark that the
mother has said in paragraph no.12 of the
petition, the affidavit in support whereof
sworn on 15th December, 2019, that Shiva
is four years old and Suraj one year and a
half. This petition was heard on 11.11.2020
and by a reckoning in time, Shiva would
3 All. Shiva & Anr. Vs. State of U.P. & Ors.
373
indeed be five years, according to both
parties. There is some discrepancy about
Suraj's age. That, however, need not detain
this Court to ponder over and decide the
precise age of the two minors. Broadly
speaking, they are young children, where
the elder of them is five years old and the
younger, definitely less than five years.

24. The mother told the Court that she
has read up to Class-VIII and is, therefore,
better educated than the husband. She
works at home and said that she had her
mother, father and brother in her family,
with whom she stays. The family are
engaged in agriculture. On being asked
whether she and her family would be
willing to raise the children, she said that
they would be more than willing. As she
said this, this Court noticed that Shiva, who
was present in Court, yearned to be in his
mother's custody and seem to be quite
familiar with her. To the contrary, he
appeared rather estranged from his father.
Pushpa,
on
being
particularly
asked
whether there was a school around the
place where her family lives, said that there
was an English Medium School there. She
told the Court that that she stays in a place
called Bhurwa Sumerpur in the district of
Hamirpur.

25. This Court also interacted with the
elder child, Shiva. As already remarked,
Shiva appears to be quite a bright child and
well aware of matters around him. He
introduced himself to the Court, on being
asked to do so, quite confidently. The Court
asked Shiva about his choice in the matter
of the parent he would like to be with,
given the circumstances. He said in
unequivocal words that he would like to
stay with his mother. This Court noticed
that the child, while saying so, was
extremely delighted about the idea and
looked forward to staying with his mother.

26. It must be noticed that there are
some very salient points, on the basis of
which, the issue about the custody of a
minor is to be decided in a given case, laid
down by the Supreme Court in Nil Ratan
Kundu and Another v. Abhijit Kundu,
(2008) 9 SCC 413. In Nil Ratan Kundu, it
has been held:

"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
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
374 INDIAN LAW REPORTS ALLAHABAD SERIES
with the court as to what is conducive to
the welfare of the minor."

27. What this Court notices in the
present case is the fact that both Shiva and
Suraj are very young children, with Shiva
just turning five. Suraj is one below his
fifth year. The principle embodied in the
proviso to Section 6(a) of the Act of 1956
is not to be applied like a statutory cutoff. It
has to be understood and applied in its
spirit, which is no more than this, that
generally speaking, and invariably, the
welfare of a minor child can be better
secured by the mother in comparison to the
father. It is not that the moment the child
turns five, or crosses that age by a few
months, the preference for the mother
would be nullified. There are many factors
that must enter consideration, before
deciding upon the question of the minor's
welfare. It is to be judged not only by the
financial capacity, but the time, attention
and care that one parent or the other can
better provide. It is also about the moral
grooming of the child, which is a very
important
factor.
The
prospects
of
education of the child are still more
important, apart from health and other
myriad factors. Amongst all these, in a case
where the child can express an intelligent
choice about his preference, it is one
important factor, which must enter into
consideration while deciding the question
of custody.

28. This Court finds that Pushpa Devi
@ Mahi, the minors' mother is better
educated than the father, who is an
illiterate. There is also no better comfort or
environment
in
the
father's
home,
compared to that of the mother's, which this
Court was able to gather. The father has his
mother, brother and nieces living with him,
with the nieces being left to care for the
minors. The father earns his livelihood by
working as an unskilled casual labourer.
His pursuit for livelihood would leave him
no time to extend any personal care to the
minors. It is for this reason that he has to
leave the minors to the care of his nieces.
Between the father's nieces, who are the
minors' cousins and the minors' mother,
decidedly, the mother's constant care and
supervision would ensure a better welfare
for the two minors here. The slightly better
education of the mother than the father,
would also augur well for the minors'
prospects in the matter of their education.
There is an English Medium School about
the place where the mother resides and this
fact has not been challenged by the father.

29. There is no doubt that the two
minors would be admitted to a suitable
institution of formal instruction/ school in
order to equip them educationally. At the
same time, the father, as already said, busy
as he is with earning his daily bread, the
minors might be neglected, resulting in
either of them or both, going wayward in
life. On the other hand, the mother stays
home and would, therefore, be better
equipped to exercise a closer vigil over the
minors' daily activities.

30. In the circumstances, this Court is
of opinion that the minors, Shiva and Suraj,
ought to remain in their mother's custody
and care. At the same time, Devendra,
being their father too, cannot be deprived
of their company altogether, and the
minors, his paternal affection. This can be
ensured by ordering a suitable schedule of
visitation for the father, where he could
meet the minors and spend time with them,
as they stay with their mother.

31. In the opinion of this Court, it
would be appropriate in the circumstances
3 All. Master Manan @ Arush Vs. State of U.P. & Ors.
375
that the father may be permitted to meet
both, Shiva and Suraj, once every fortnight
between 10:00 a.m. to 2:00 p.m. Devendra
can meet the minors either on alternate
Sundays or any other week day, suitable to
him, going by the contingencies of his
engagement, which he may intimate to
Pushpa Devi @ Mahi. The visitation, as
aforesaid, shall be adjusted by the parties
by mutual consent about the day of
visitation, but with the restriction that there
have to be two visitations every month.
This arrangement would continue till Shiva
and Suraj attain the age of majority.

32. This habeas corpus writ petition
succeeds and is allowed. The rule nisi
dated 19.10.2020 is made absolute in the
terms that the custody of two minors, Shiva
and Suraj, shall be entrusted by Devendra
to Smt. Pushpa Devi @ Mahi within a
week of delivery of this judgment at
Pushpa's home, located in Village and Post
Bhurwa Sumerpur, District of Hamirpur. In
the event of default, the Chief Judicial
Magistrates, Hamirpur and Shahjahanpur,
in coordination amongst themselves and the
Superintendent of Police, Shahjahanpur
shall cause the custody of the two minors,
Shiva and Suraj, sons of Devendra Kumar,
to be delivered to their mother, Smt.
Pushpa Devi @ Mahi at her home in the
district of Hamirpur.

33. Let this order be communicated to
the learned Chief Judicial Magistrate,
Hamirpur, the learned Chief Judicial
Magistrate,
Shahjahanpur
and
the
Superintendent of Police, Shahjahanpur, by
the Joint Registrar (Compliance).
----------
(2021)03ILR A375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

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

Habeas Corpus Writ Petition No. 1026 of 2019

Master Manan @ Arush ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhishm Pal Singh

Counsel for the Respondents:
A.G.A., Sri Abhay Nitin Singh, Sri Shailesh
Kumar Yadav

(A) Writ of Habeas Corpus - prerogative
writ
of
habeas
corpus-extraordinary
remedy-writ is issued, where in the
circumstances of a particular case, the
ordinary remedy provided under law is
either not available or is ineffective -
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 - where
facts are disputed and a detailed inquiry is
required - court may decline to exercise
its extraordinary jurisdiction and may
direct
the
parties
to
approach
the
appropriate court . (Para - 14,15)

Mother of the corpus living separately from her
husband (respondent no. 6) - corpus (minor
child) about seven and a half year of age taken
away by the respondent no. 6 (father) -
existence of a dispute with regard to the
handing over the custody of the child to the
mother, pursuant to some agreement between
the parties, the terms of which, are now being
disputed. (Para - 3, 16)

HELD: - Mother's claim for custody and
visitation rights, are matters which are to be
agitated
in
appropriate
proceedings
/
appropriate forum. This Court is not inclined to
exercise its extraordinary jurisdiction in the
matter. (Para - 19,21)