# Smt. Deepmala Giri & Anr v. State of U.P - **Citation:** (2021) 11 ILRA 810 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-09-16 - **Case number:** Habeas Corpus Writ Petition No. 576 of 2021 - **Bench:** Shamim Ahmed - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-deepmala-giri-anr-v-state-of-u-p-46614 - **Pages:** 3 ## Headnote Constitution of India, Article 226 - Habeas corpus - Maintainability - Petitioner no. Dharmendra Bharti filed petition alleging illegal detention of corpus (a major girl) by her father - On notice being issued corpus brought before the Court not by corpus father to whom notice was issued to produce the corpus but by by petitioner no.2 Dharmendra Bharti himself - Held- Corpus not in illegal custody of opposite party, father of corpus, as alleged - Habeas corpus petition not maintainable. (Para 7, 8) (E-5) ## Text 810 INDIAN LAW REPORTS ALLAHABAD SERIES allegation of illegal detention, the writ petition seeking writ of habeas corpus is liable to be rejected summarily. Such writ is available against any person who is suspected of detaining another unlawfully and the habeas corpus Court must issue it, if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ can be addressed to any person whatever - an official or a private individual - who has another in his custody. 25. In view of the principles of law laid down by various Courts, if facts of the present case are seen, it is apparent that the petitioner has failed to demonstrate that his two minor children are illegally detained by his wife (respondent no.7). The limited contention of the petitioner is about the welfare of his children, which according to his own assessment, can be better if children would be with him. We are afraid, this selfappreciated statement of the petitioner will not give him any benefit in the present case. The mere fact that the financial condition of the petitioner is superior than that of respondent no.7, does not give him any right for issuance of writ of habeas corpus. If financial position is the only criteria, then in every case, a person who is financially strong would claim custody of child. If a mother is struggling for her rights along with her children, even assuming that she is financially weak, she cannot be deprived of her children just because her husband is a moneyed man. The judgments relied upon by counsel for the petitioner are of no help to him. Even otherwise, in the case in hand, age of the second child of the petitioner and respondent no.7 is just about 2 1/2 years and, we do not wish to separate the small baby from her mother as well as her sister. 26. From the pleadings of the parties and after hearing the arguments, it appears that various allegations are levelled by the parties against each other. It further appears that the parties have not made any effort for amicable settlement and are approaching the Court by filing one case after another. We hope that some efforts would be made by the parties for amicable settlement and, according to us, that would be actual welfare of the children. 27. In view of the aforesaid, in our considered opinion, the petition has no substance, as no ground whatsoever has been made for issuance of writ of habeas corpus. Accordingly, we decline to exercise the jurisdiction for issuance of writ of habeas corpus. 28. The writ petition is, accordingly, dismissed. However, dismissal of writ petition shall not preclude the petitioner from seeking remedy available to him in law. Any observation made by this Court, while deciding this writ petition, shall not come in the way of either party." 5. Considering the submissions made by learned counsel for the petitioners, learned A.G.A. and from the perusal of the case law cited by learned A.G.A. it transpires that this habeas corpus writ petition under Article 226 of Constitution of India is not maintainable. However, the petitioner is free to avail the remedy before the civil court concerned. 6. Accordingly, this petition is hereby dismissed. ---------- (2021)11ILR A810 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.09.2021 BEFORE THE HON'BLE SHAMIM AHMED, J. Habeas Corpus Writ Petition No. 576 of 2021 Smt. Deepmala Giri & Anr. ...Petitioners Versus State of U.P. & Ors. ...Respondents 11 All. Smt. Deepmala Giri & Anr. Vs. State of U.P. & Ors. 811 Counsel for the Petitioners: Sri Arya Suman Pandey, Sri Avnish Kumar Rai Counsel for the Respondents: A.G.A. Constitution of India, Article 226 - Habeas corpus - Maintainability - Petitioner no. Dharmendra Bharti filed petition alleging illegal detention of corpus (a major girl) by her father - On notice being issued corpus brought before the Court not by corpus father to whom notice was issued to produce the corpus but by by petitioner no.2 Dharmendra Bharti himself - Held- Corpus not in illegal custody of opposite party, father of corpus, as alleged - Habeas corpus petition not maintainable. (Para 7, 8) (E-5) (Delivered by Hon'ble Shamim Ahmed, J.) 1. Heard Sri Avnish Kumar Rai learned counsel for the petitioners and learned AGA for the State. 2. This habeas corpus writ petition has been filed with a prayer to issue a writ, order or direction in the nature of Habeas Corpus commanding the respondent no.4 to produce the petitioner no.1 forthwith, who is under illegal detention of respondent no.4 before this Hon'ble Court and her custody be given to the petitioner no.2 forthwith by this Hon'ble Court and she may be set at liberty. 3. This Court vide order dated 24.8.2021 passed the following order:- "1. Sri Arya Suman Pandey, learned counsel for the petitioner. 2. Issue notice to respondent no. 4 through C.J.M, Ghazipur for production of corpus of petitioner no. 1 - Smt. Deepmala Giri on or before the next date. Petitioner to take steps to supply copy of the writ petition to the Registry during course of the day for taking necessary steps. 3. List on 2.9.2021." 4. Today when the case is taken up, learned counsel for the petitioners Sri Avnish Kumar Rai submits that petitioner no.1 Deepmala Giri daughter of Sri Anjani Kumar Giri is present before this Court, but she has been brought before this Court by petitioner no.2 Dharmendra Bharti and not by her father Anjani Kumar Giri respondent no.4 to whom notice was issued by this Court to produce the corpus. 5. On being asked by this Court from petitioner no.1 Deepmala Giri as to who has brought her before this Court, she has stated that she has been brought by petitioner no.2 Dharmendra Bharti before this Court. On being further asked from petitioner no.1 as to what is her age, she has stated that her date of birth is 1.8.1997 and her age is 24 years, therefore she is major. She has further stated that she is graduate. 6. Sri Avnish Kumar Rai, learned counsel for the petitioners further submits that petitioner no.2 Dharmendra Bharti is also present before this Court. When this Court asked the petitioner no.2 whether he has produced the petitioner no.1 before this Court, he has stated that the father of petitioner no.1 refused to produce petitioner no.1 before this Court, therefore petitioner no.1 Deepmala Giri came to Allahabad with him from District Ghazipur. 7. Learned AGA has pointed out that corpus petitioner no.1 Deepmala Giri is present before this Court and she has been brought before this Court by petitioner no.2 Dharmendra Bharti, therefore, she is not in illegal custody of respondent no.4 Anjani Kumar Giri, father of the corpus and hence, this habeas corpus writ petition is not maintainable. 8. In view of the above, this habeas corpus writ petition is not maintainable as the petitioner 812 INDIAN LAW REPORTS ALLAHABAD SERIES no.1 is not in illegal custody of respondent no.4. Accordingly, the writ petition is dismissed as not maintainable. 9. Petitioner no.1 Deepmala Giri is major, therefore she is free to go wherever and with whomsoever she wants to go on her own sweet will. ---------- (2021)11ILR A812 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.09.2021 BEFORE THE HON'BLE GAUTAM CHOWDHARY, J. Habeas Corpus Writ Petition No. 615 of 2021 Master Parth & Anr. ...Petitioners Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioners: Sri Ajay Vikram Yadav, Sri Sunil Kumar Singh Counsel for the Respondents: A.G.A. Civil Law - Custody of Minor - Constitution of India, Article 226 - Habeas Corpus Writ Petition - extraordinary jurisdiction - Maintainability - habeas corpus is very extraordinary jurisdiction to be exercised in such cases where the illegal confinement of the corpus is established - 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 - welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach (Para 5, 7, 9) Mother alleged that the child was abducted from the her house by child father - no F.I.R. against the said incident lodged - after a lapse of three months Habeas Corpus petition filed - Held - dispute is between father and mother - Both are natural guardians of the child - proper remedy does not lie before High Court Court - matter is of the civil nature which can be determined only by the civil court at appropriate forum Dismissed. (E-5) List of Cases cited: 1. Smt. Meenakshi & anr. Vs St. of U.P. & 8 ors. 2020 12 ADJ 254 2. Tejaswini Gaud & ors. Vs Shekhar Jagdish Prasad Tewari & ors. (2019) 7 SCC 42 3. Manuj Sharma Vs St. of U.P. & ors. 2019(4) ADJ 840 (DB) (Delivered by Hon'ble Gautam Chowdhary, J.) 1. Heard learned counsel for the petitioners and Shri Pankaj Srivastava, Shri C.B. Singh and Shri Rakesh Chandra Srivastava, learned A.G.A. for the State. 2. This writ petition has been filed with the following prayer :- "(i) a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce the corpus/ petitioner no.1 before this Hon'ble Court and set him at liberty/ custody of petitioner no.2 forthwith; (ii) any other writ, order or direction which this Hon'ble Court deems fit and (iii) Award cost of writ petition as well as compensation to the petitioners throughout." 3. The brief facts of the case are that the marriage of the petitioner no.2 was solemnized with the respondent no.4, according to the Hindu rites and rituals on 14.12.2012 and out of wedlock of the petitioner no.2 and the respondent no.4, a baby/ son (petitioner no.1) was born to them who is presently aged about four years. Thereafter some dispute arose