# Smt. Reetu & Anr v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-17
- **Case number:** Habeas Corpus Writ Petition No. 406 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reetu-anr-v-state-of-u-p-ors-45964
- **Pages:** 11

## Headnote

A. Constitution of India-Article 226 - Writ
of Habeas Corpus-Maintainability- Matter
relating to custody of minor-A writ of
habeas corpus can certainly be issued in
matters relating to custody of a child
where the child is in custody of a relative
or a person, who is not the lawful
guardian, though not an utter stranger - A
mother
pitted
against
the
minor's
grandmother and the father's brother can
certainly say that the minor is in their
unlawful custody, entitling her to maintain
a writ petition, asking for a writ of habeas
corpus-Held, petition is maintainable.
(Para 13 and 15)

B. Law of Guardianship - Guardians and
Wards Act, 1890 - Hindu Personal Law -
Application - Statute, as a whole, has been
interpreted consistently to prevail over the
personal law of parties when the question about
appointment or declaration of a guardian or the
custody of a minor arises. (Para 14)

C. Civil Law - Hindu Marriage Act, 1955 -
Section 6 - Guardians and Wards Act, 1890 -
Mother is the natural guardian of the minor - In
the presence of the minor's natural guardian,
the grandmother and the father's brother would
not be entitled to the minor's custody. (Para 14
and 16)

D. Writ of Habeas Corpus - Welfare of
child - Factors to be kept in mind - The
welfare of a minor, which is of paramount
consideration under the Guardians and Wards
Act, 1890, is best secured in the mother's hands
- Apart from the question of the necessary
wherewithal to bring up the minor, the
Grandmother's advancing age would be a
42 INDIAN LAW REPORTS ALLAHABAD SERIES
decisive factors to consider - Held, Habeas
Corpus Writ Petition succeeds, the rule nisi is
made absolute. (Para 14, 20, 23 and 24)

Writ Petition allowed. (E-1)

Cases relied on :-

## Text

9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
41
the circumstances noticed above is far
better secured with the mother than in the
hands of the grandfather, respondent no.4.

25. In the result, this Habeas Corpus
Writ Petition is allowed.

26. The rule nisi dated 28.08.2020 is
made absolute. The minor, Sahil, who has been
produced before this Court in compliance with
the rule nisi, is ordered to be handed over
forthwith to petitioner no.2, Smt. Rehana Bano,
who is present in Court. He shall remain in her
custody until otherwise ordered by a Court of
competent jurisdiction.

27. The fourth respondent, Abdul Sohrab,
who is the minor's grandfather, shall have
visitation rights to meet the child on the first
Sunday of every calendar month between 10:00
a.m. to 12.00 noon at the residence of the second
petitioner, Smt. Rehana Bano, situate at Village
Budkuda, Tehsil, Jakhania, Police Station
Budkuda, District Ghazipur. During these
visitations, the minor shall be provided free access
to his grandfather by the second petitioner, Smt.
Rehana Bano. She shall extend due courtesy to the
fourth respondent, Abdul Sohrab.

28. Let this order be communicated to
the learned District Judge, Ghazipur, the
learned Chief Judicial Magistrate, Ghazipur
and the Superintendent of Police, Ghazipur
by the office forthwith.
----------
(2020)09ILR A 41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2020

BEFORE

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

Habeas Corpus Writ Petition No. 406 of 2020

Smt. Reetu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vikrant Singh Parihar, Sri Vipul Kumar
Singh

Counsel for the Respondent:
G.A., Sri Ajit Kumar

A. Constitution of India-Article 226 - Writ
of Habeas Corpus-Maintainability- Matter
relating to custody of minor-A writ of
habeas corpus can certainly be issued in
matters relating to custody of a child
where the child is in custody of a relative
or a person, who is not the lawful
guardian, though not an utter stranger - A
mother
pitted
against
the
minor's
grandmother and the father's brother can
certainly say that the minor is in their
unlawful custody, entitling her to maintain
a writ petition, asking for a writ of habeas
corpus-Held, petition is maintainable.
(Para 13 and 15)

B. Law of Guardianship - Guardians and
Wards Act, 1890 - Hindu Personal Law -
Application - Statute, as a whole, has been
interpreted consistently to prevail over the
personal law of parties when the question about
appointment or declaration of a guardian or the
custody of a minor arises. (Para 14)

C. Civil Law - Hindu Marriage Act, 1955 -
Section 6 - Guardians and Wards Act, 1890 -
Mother is the natural guardian of the minor - In
the presence of the minor's natural guardian,
the grandmother and the father's brother would
not be entitled to the minor's custody. (Para 14
and 16)

D. Writ of Habeas Corpus - Welfare of
child - Factors to be kept in mind - The
welfare of a minor, which is of paramount
consideration under the Guardians and Wards
Act, 1890, is best secured in the mother's hands
- Apart from the question of the necessary
wherewithal to bring up the minor, the
Grandmother's advancing age would be a
42 INDIAN LAW REPORTS ALLAHABAD SERIES
decisive factors to consider - Held, Habeas
Corpus Writ Petition succeeds, the rule nisi is
made absolute. (Para 14, 20, 23 and 24)

Writ Petition allowed. (E-1)

Cases relied on :-
1. Syed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247
2. Nithya Anand Raghavan Vs St. of (NCT of
Delhi) & anr., (2017) 8 SCC 454
3. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors.; (2019) 7 SCC 42
4. Rafiq Vs Smt. Bashiran & anr., AIR 1963 Raj
239
5. Khaled Kamal Hussein Mohamed Kassem, An
Egyptian Citizen Vs St. of Mah. & ors., 2020 SCC
OnLine Bom 166
6. Habeas Corpus Writ Petition No. 82 of 2019;
Manuj Sharma Vs St. of U.P. & ors., decided on
12 April, 2019

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

1. Smt. Reetu, the first petitioner says
that her minor son, Mohan @ Bholey, the
second petitioner has been unlawfully
detained by respondent nos.6, 7, 8, 9 and
10. She prays that a writ in the nature of
habeas corpus be issued to respondent
nos.6, 7, 8, 9 and 10, ordering them to
produce the second petitioner before this
Court and upon production, the said minor
be set at liberty by placing him in her
custody.

2. A rule nisi was issued on
24.08.2020, ordering the minor, Mohan @
Bholey, to be produced before the Court on
27.08.2020 at 2:00 p.m. On 27.08.2020, the
minor was produced in the manner and the
time directed. This Court finding the minor
to be a very young child, aged about 3
years, thought it appropriate to hear the
matter in camera. The case was directed to
be put up in Chambers at 4:00 p.m., where
family members of the minor alone were
allowed along with learned Counsel.
During the hearing in Chambers, this Court
while reserving judgment, recorded the
following orders:

"This matter has been taken up in
Chambers today at 4 p.m., in accordance
with the earlier order of the day, in
presence of Sri Vikrant Singh Parihar,
learned Counsel for the petitioners and Sri
Ajit Kumar, learned Counsel appearing on
behalf of respondent nos.8 and 9, who are
the grandmother of the minor and the
father's elder brother. respondent nos.6 and
7, who are the sister and the sister's
husband of the minor's deceased father, are
not required to be heard. Respondent no.10,
Chhotey Lal is reported to be dead.

I have spoken to the minor
Mohan @ Bholey in Chambers. He is a
very young child of three years. I have also
spoken to the mother, petitioner no.1, the
grandmother of the minor, respondent no.8,
in whose custody the minor presently stays
and respondent no.9, Deen Dayal.

Learned Counsel for both parties
have addressed this Court on merits of their
respective cases.

Judgment reserved."

3. Heard Sri Vikrant Singh Parihar,
learned Counsel for the petitioners and Sri
Ajit Kumar, learned Counsel appearing on
behalf of respondent nos.8 and 9.

4. It must be recorded here that
respondent nos.8 and 9, the minor's
grandmother and his uncle (the father's
elder brother), who have appeared to show
cause in the matter, have chosen not to file
a counter affidavit. The matter was,
therefore, heard on the basis of averments
made and the material annexed to the
9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
43
habeas corpus writ petition, ascertaining
the stand of parties and also speaking to the
minor, Mohan @ Bholey. What the parties,
including the minor, have said and what
this Court has been able to ascertain from
them, would figure a little later in this
judgment.

5. The facts giving rise to this petition
are these: Smt. Reetu, the first petitioner
was married to one Shyam Sundar alias
Shyamu according to Hindu rites on
20.02.2015. Shyam Sundar alias Shyamu is
no more. He has committed suicide on
14.07.2019. Of the wedlock of parties, two
children were born, to wit, Mohan @
Bholey, the detenue and Km. Jhalak. It is
made out that the first petitioner's husband
was unemployed and in financial distress.
He had borrowed some money from
respondent no.6, his sister's husband. He
could not liquidate the debt that he owed to
the sixth respondent. It is claimed that the
first petitioner's husband took away all that
she had in jewellery. This had led to a bitter
dispute between the first petitioner's
husband and all the private respondents.
Distressed
and
distraught,
the
first
petitioner's husband along with the first
petitioner and their two children left his
parents' home and went to stay with his inlaws. It is claimed that anguished and
distressed, he consumed some poisonous
substance once, but was saved. On a second
attempt, he was not that lucky and passed
away on 14.07.2019. The first petitioner
had gone over to her in-laws' place to
participate in the last rites of her husband.
Post the thirteenth day rite (तेरहव ीं),
respondent nos.6, 7, 8 and 9 ousted the first
petitioner from her matrimonial home,
abusing and battering her in the process.

6. It is averred by the first petitioner
that respondent nos.6, 7, 8, 9 and 10
unlawfully detained the second petitioner,
her minor son, Mohan @ Bholey. Smt.
Reetu says that all her efforts, to regain
custody of her minor son, have been in
vain. Smt. Reetu says that she is the natural
guardian of her minor son, whereas none of
the respondents are entitled in law to his
custody. It is also averred in the petition
that on 08.06.2020, Smt. Reetu made
applications to the Superintendent of
Police, Etah and the Station House Officer,
Police Station Jaitharana, District Etah to
liberate her minor from the unlawful
custody of respondent nos.6 and 7, and to
entrust him to her care. She has annexed
copies of those two applications and the
photostat
copies
of
registered
postal
receipts, evidencing dispatch of the two
applications,
last
mentioned
to
the
concerned Authorities. It is in the aforesaid
facts and circumstances that the first
petitioner has moved this Court.

7. Mr. Ajit Kumar, learned Counsel
appearing on behalf of respondent nos.8
and 9 submits that they are no strangers to
the minor and cannot be called persons who
are holding him in unlawful custody.
Respondent
no.8
is
the
minor's
grandmother (father's mother), whereas
respondent no.9 is his uncle (father's elder
brother). He takes objection to the
maintainability of this habeas corpus writ
petition by urging that a writ of habeas
corpus can be issued against one who holds
the
minor
in
unlawful
custody.
A
grandmother and a father's brother cannot
be placed in that category. It may be that
the first petitioner can establish a better
right to the minor's custody, but that right
can be established in duly constituted
proceedings under Section 25 of the
Guardians and Wards Act, 1890 (for short,
''the Act'). A writ of habeas corpus is out of
place and cannot issue.
44 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Mr. Parihar, learned Counsel
appearing on behalf of the petitioner, on the
other hand, argues that respondent nos.8
and 9, notwithstanding their kinship and
blood relationship to the minor, are not
natural guardians in the mother's presence.
The mother is a natural guardian under
Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 along with the
father. In the father's absence, according to
the learned Counsel for the first petitioner,
the mother alone is the natural guardian,
whereas the right to custody asserted by the
minor's grandmother and his uncle is
unlawful enough to entitle this Court to
issue a writ of habeas corpus.

9. This Court has keenly considered
the rival submissions of parties, both about
the maintainability and the sustainability of
the first petitioner's claim. The Court
proposes to dispose of the challenge as to
maintainability, first in order.

10. This issue fell for consideration of
the Supreme Court in Syed Saleemuddin
v. Dr. Rukhsana and Ors., (2001) 5 SCC
247. It was held by their Lordships thus:

"11. From the principles laid
down in the aforementioned cases it is clear
that in an application seeking a writ of
Habeas Corpus for custody of minor
children the principal consideration for the
Court is to ascertain whether the custody of
the children can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in care and custody of somebody
else. The principle is well settled that in a
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court. Unfortunately, the Judgment of
the High Court does not show that the
Court has paid any attention to these
important and relevant questions. The High
Court has not considered whether the
custody of the children with their father
can, in the facts and circumstances, be said
to be unlawful. The Court has also not
adverted to the question whether for the
welfare of the children they should be taken
out of the custody of their father and left in
the care of their mother. However, it is not
necessary for us to consider this question
further in view of the fair concession made
by Shri M.N. Rao that the appellant has no
objection if the children remain in the
custody of the mother with the right of the
father to visit them as noted in the
judgment of the High Court, till the Family
Court disposes of the petition filed by the
appellant for custody of his children."

11. Again, the question engaged the
attention of the Supreme Court in Nithya
Anand Raghavan vs. State (NCT of
Delhi) and another, (2017) 8 SCC 454. In
Nithya Anand Raghavan, it was held:

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District
Magistrate,
Darjeeling
[Kanu
Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] ,
has held that habeas corpus was essentially
a procedural writ dealing with machinery
of justice. The object underlying the writ
was to secure the release of a person who is
illegally deprived of his liberty. The writ of
habeas corpus is a command addressed to
the person who is alleged to have another
in unlawful custody, requiring him to
produce the body of such person before the
court. On production of the person before
the court, the circumstances in which the
custody of the person concerned has been
9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
45
detained can be inquired into by the court
and upon due inquiry into the alleged
unlawful
restraint
pass
appropriate
direction as may be deemed just and
proper. The High Court in such proceedings
conducts
an
inquiry
for
immediate
determination of the right of the person's
freedom and his release when the detention
is found to be unlawful.

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

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

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

12.

This
question
about
the
maintainability of a petition for a writ of
habeas corpus came up for consideration
before their Lordships of the Supreme
Court in Tejaswini Gaud and others vs.
Shekhar Jagdish Prasad Tewari and
others, (2019) 7 SCC 42. The question has
been
elaborately
examined
by
their
Lordships in Tejaswini Gaud, and it has
been held:

"19. Habeas corpus proceedings
is not to justify or examine the legality of
the custody. Habeas corpus proceedings is a
medium through which the custody of the
child is addressed to the discretion of the
Court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the
writ is issued where in the circumstances of
the
particular
case,
ordinary
remedy
provided by the law is either not available
or is ineffective; otherwise a writ will not
be issued. In child custody matters, the
power of the High Court in granting the
writ is qualified only in cases where the
detention of a minor by a person who is not
entitled to his legal custody. In view of the
pronouncement on the issue in question by
the Supreme Court and the High Courts, in
our view, in child custody matters, the writ
of habeas corpus is maintainable where it is
proved that the detention of a minor child
by a parent or others was illegal and
without any authority of law.

20. In child custody matters, the
ordinary remedy lies only under the Hindu
Minority and Guardianship Act or the
Guardians and Wards Act as the case may
be. In cases arising out of the proceedings
under the Guardians and Wards Act, the
jurisdiction of the court is determined by
whether the minor ordinarily resides within
the area on which the court exercises such
jurisdiction.
There
are
significant
differences between the enquiry under the
Guardians and Wards Act and the exercise
of powers by a writ court which is
summary in nature. What is important is the
welfare of the child. In the writ court, rights
are determined only on the basis of
affidavits. Where the court is of the view
that a detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to
approach the civil court. It is only in
exceptional cases, the rights of the parties
to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas corpus.

21. In the present case, the
appellants are the sisters and brother of the
mother Zelam who do not have any
authority of law to have the custody of the
minor child. Whereas as per Section 6 of
the Hindu Minority and Guardianship Act,
the first respondent father is a natural
guardian of the minor child and is having
the legal right to claim the custody of the
child. The entitlement of father to the
custody of child is not disputed and the
child being a minor aged 11⁄2 years cannot
express its intelligent preferences. Hence,
in our considered view, in the facts and
circumstances of this case, the father, being
the natural guardian, was justified in
invoking the extraordinary remedy seeking
custody of the child under Article 226 of
the Constitution of India."

13. A writ of habeas corpus can
certainly be issued in matters relating to
custody of a child where the child is in
custody of a relative or a person, who is not
the lawful guardian, though not an utter
stranger. A kinsman or a relative of the
child, who holds the child in custody back
from the lawful guardian, would entitle the
9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
47
lawful guardian to seek restoration of
custody through a writ of habeas corpus.
The question, whether the person who
applies for the writ is the lawful guardian
or not, is generally to be determined with
reference to the personal law, applicable to
parties. However so, the Court may also
inquire into for the purpose of determining
the legality of the custody, from which
liberation is sought, vis-a-vis the right of
the person asking for the writ, the question
of welfare of the minor.

14. Under the provisions of the Act,
the welfare of the minor is of paramount
consideration. At the same time, Sections
17 and 19 of the Act and the said statute, as
a whole, has been interpreted consistently
to prevail over the personal law of parties
when the question about appointment or
declaration of a guardian or the custody of
a minor arises. Section 6 of the Hindu
Marriage Act, 1955, clearly provides that
the mother is a natural guardian of the
minor and a wealth of decisions of Courts
in our country have been consistent that the
welfare of a minor, which is of paramount
consideration under the Act, also is best
secured in the mother's hands. This issue
would be examined a little later.

15. The point presently under
consideration does not spare doubt that a
mother
pitted
against
the
minor's
grandmother and the father's brother can
certainly say that the minor is in their
unlawful custody, entitling her to maintain
a writ petition, asking for a writ of habeas
corpus. It is, accordingly, held that this
petition is maintainable.

16. Now, turning to the entitlement of
the first petitioner to succeed in her claim
for a writ of habeas corpus, the inquiry by
its nature before this Court is very
summary. This Court is mindful of the fact
that respondent nos.8 and 9 are the
grandmother and the father's brother of the
minor. They are not utter strangers, but
kindred. Even if the mother is the minor's
natural
guardian,
these
respondents
certainly have an interest in the minor's
welfare and well being, together with a
right to be in association with him. But,
normally, in the presence of the minor's
natural guardian, the grandmother and the
father's brother would not be entitled to the
minor's custody. There could be a case,
where
these
blood
relations
may
demonstrate that conditions do exist or
circumstances obtain, that render the
mother unfit to hold the minor's custody.
These
circumstances,
in
extreme
contingencies, are illustrated by a situation,
where the mother is leading an immoral life
or in a more benign situation is suffering
from a serious disease or mental ailment.
There could be other circumstances also,
where these blood relations could establish
that the welfare of the minor would not be
best secured in the mother's hand and
further that it would be better secured with
them. This Court, however, is not the forum
to determine that question. The private
respondents have all the liberty to establish
their right to the minor's custody before a
Court of the competent jurisdiction under
the Act. So far as this Court is concerned,
in the nature of the summary inquiry, there
is enough warrant in law to assume that in
the presence of the natural guardian, that is
the mother, respondent nos.8 and 9, that is
to say, the grandmother and the father's
brother are not entitled to hold the minor's
custody. There is a strong presumption that
parents,
and particularly,
the
mother
secures the child's welfare, the best. In this
connection, reference may be made to the
decision of the Rajasthan High Court in
Rafiq vs. Smt. Bashiran and another,
48 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 1963 RAJ 239. In Rafiq (supra), it
was held:

"(4) There is nothing on record to
show that the father of the minor is unfit to
be the guardian of her person. As was
observed in B.N. Ganguly v. G.H. Sarkar,
AIR 1961 Madh-Pra 173 there is a
presumption that the parents will be able to
exercise good care in the welfare of their
children."

17. This question engaged the
attention of the Division Bench of the
Bombay High Court in Khaled Kamal
Hussein Mohamed Kassem An Egyptian
Citizen
vs.
State
of
Maharashtra
Through Chandan Nagar Police Station
and Others, 2020 SCC OnLine Bom 166.
The case arose out of a maze of
complicated human relations, where the
petitioner asked for the custody of his
minor son, held by his deceased wife's
mother and sister. The petitioner was an
Egyptian citizen, a Muslim, whereas his
wife was a indian and a Hindu. They had
married under the Special Marriage Act and
were blessed with a son, whose custody
was in issue. Unfortunately, the wife passed
away and the petitioner who was serving
outside the country, but frequently visiting
his wife and the new born child, asked for
the minor's custody. In the exercise of their
jurisdiction, to deal with the custody issue
by a writ of habeas corpus, their Lordships
of the Division Bench entered judgment,
that was expressed to be tentative. The
determination was held, subject to regular
proceeding before a Court of competent
jurisdiction under the Act, if resorted to by
the parties. The overbearing principle that
one cannot miss in the decision is that a
definitive preference was expressed, albeit
tentative, in favour of the surviving parent
and a natural guardian of the child, that is,
the father. Speaking for the Bench, S.S.
Shinde, J. held:

"85. As it is clear from the
observations made by the Hon'ble Supreme
Court in Para 18 that, just because the
parents are at war with each other, does not
mean that the child should be denied the
care, affection, love or protection of any
one of the two parents. In the present case,
it is admitted position that, the Petitioner is
the only surviving parent and natural
guardian of child Kian. As already
observed he has taken care of child Kian in
past and there is no room for doubt that, he
can look after welfare of child Kian even in
future."

18. Now, since welfare of the minor is
the most fundamental guiding principle, it
is that which has to be the criterion, even in
summary decision making. This Court has
already referred to the decision of the
Supreme Court in Tejaswini Gaud in the
context of maintainability of a writ petition
in child custody matters. Paragraph no.21
of the report quoted (supra) indicates a
preference in favour of the natural
guardian, who was the father in the case
under reference, before their Lordships,
over the other side, who were the minor's
kindred. In Tejaswini Gaud (supra), it was
held on the issue of welfare of the minor,
thus:

"35. The 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. In the
present case, the first respondent has
neither abandoned the child nor has
deprived the child of a right to his love and
affection. The circumstances were such that
due to illness of the parents, the appellants
had to take care of the child for some time.
9 All. Smt. Reetu & Anr. Vs. State of U.P. & Ors.
49
Merely because, the appellants being the
relatives took care of the child for some
time, they cannot retain the custody of the
child. It is not the case of the appellants
that the first respondent is unfit to take care
of the child except contending that he has
no female support to take care of the child.
The first respondent is fully recovered from
his illness and is now healthy and having
the support of his mother and is able to take
care of the child.

36. The appellants submit that
handing over of the child to the first
respondent would adversely affect her and
that the custody can be handed over after a
few years. The child is only 11⁄2 years old
and the child was with the father for about
four months after her birth. If no custody is
granted to the first respondent, the Court
would be depriving both the child and the
father of each other's love and affection to
which they are entitled. As the child is in
tender age i.e. 11⁄2 years, her choice cannot
be ascertained at this stage. With the
passage of time, she might develop more
bonding with the appellants and after some
time, she may be reluctant to go to her
father in which case, the first respondent
might be completely deprived of her child's
love and affection. Keeping in view the
welfare of the child and the right of the
father to have her custody and after
consideration
of
all
the
facts
and
circumstances of the case, we find that the
High Court was right in holding that the
welfare of the child will be best served by
handing over the custody of the child to the
first respondent.

37. Taking away the child from
the custody of the appellants and handing
over the custody of the child to the first
respondent might cause some problem
initially; but, in our view, that will be
neutralised with the passage of time.
However, till the child is settled down in
the atmosphere of the first respondent
father's house, Appellants 2 and 3 shall
have access to the child initially for a
period of three months for the entire day
i.e. 8.00 a.m. to 6.00 p.m. at the residence
of the first respondent. The first respondent
shall ensure the comfort of Appellants 2
and 3 during such time of their stay in his
house. After three months, Appellants 2 and
3 shall visit the child at the first
respondent's house from 10.00 a.m. to 4.00
p.m. on Saturdays and Sundays. After the
child completes four years, Appellants 2
and 3 are permitted to take the child on
every Saturday and Sunday from the
residence of the father from 11.00 a.m. to
5.00 p.m. and shall hand over the custody
of the child back to the first respondent
father before 5.00 p.m. For any further
modification of the visitation rights, either
parties are at liberty to approach the High
Court."

19. In a recent decision, a Division
Bench of this Court, in Manuj Sharma vs.
State of Uttar Pradesh & Others, Habeas
Corpus Writ Petition No.82 of 2019,
decided on 12th April, 2019, preferred the
mother in the matter of custody of a two
and half years child over the father - both
natural guardian - on an abiding principle
that in case of children of tender years, the
mother is more suitable to hold custody.
The plea that the mother is not financially
well off was negatived as a disentitling
factor. In Manuj Sharma (supra), it was
held:

"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
50 INDIAN LAW REPORTS ALLAHABAD SERIES
the
welfare
of
his
children,
which
according to his own assessment, can be
better if children would be with him. We
are afraid, this self-appreciated 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."

20. Now, in the present case, this
Court interacted with the mother, the first
petitioner here and respondent nos.8 and 9,
the minor's grandmother and father's
brother, respectively. The Court also spoke
to the minor, Mohan @ Bholey. It must be
remarked that the minor, Mohan @ Bholey,
though a bright child is still very young. He
could not intelligibly express his wish or
desire in the matter, though this Court did
notice that he appeared to be attached to the
grandmother, which for a child his age is
logical, inasmuch as he has been staying
with her for sometime. The mother came
forward with an unqualified assertion of
her right to hold the minor's custody. She
expressed all that a mother would in normal
circumstances. She stays with her parents.
On
the
other
hand,
the
minor's
grandmother, Smt. Rani, an elderly woman
and a widow, stays with her daughter, Smt.
Laxmi, respondent no.7 and her son-in-law,
Sandeep, respondent no.6. Apart from the
question of the necessary wherewithal to
bring up the minor, the grandmother's
advancing age, would be a decisive factor
to consider, in the opinion of this Court.
This Court also notices that respondent
nos.6 and 7 have not come forward to
undertake financial or other responsibility
for the minor's upbringing. So far as
respondent no.9, Deen Dayal, the minor's
father's brother is concerned, he candidly
told the Court that he has no objection if
the minor is given into the mother's
custody.

21. This Court must also note that the
grandmother
was
very
frantic
about
retaining the minor's custody. She told the
Court that her son, the minor's father is
dead and the minor means a lot to her. She
is honest in expressing that sentiment of
hers. But, her feelings alone cannot qualify
her to be the person with whom the minor's
custody can best be entrusted. The mother,
after all, is the natural guardian, under
Section 6(a) of the Hindu Marriage Act and
the sole surviving parent. There is, as
earlier noticed, a presumption in favour of
the parents taking best care of their
children. In case of a mother, the
presumption is very strong. Between the
yearning grandmother and the mother, who
claims custody of her child, certainly the
mother is prima facie better entitled. At the
same time, the grandmother and the father's
brother, respondent nos.8 and 9, who are
closed kindred of the minor, are entitled to
meet him.

22. It is made clear that whatever this
Court has said is all tentative. Respondent
nos.8 and 9 or any other person, who
considers himself/ herself entitled to the
9 All. Smt. Madhubala Mishra & Anr. Vs. Shyam Dhar Dubey & Ors.
51
minor's custody, better than the mother, can
move and establish that right before a Court
of competent jurisdiction under the Act. If
an application is brought under Section 25
of the Act or other appropriate proceeding
under the said statute, anything said in this
judgment, shall not affect the determination
to be made by the Court of competent
jurisdiction.

23. In the result, this Habeas Corpus
Writ Petition succeeds and is allowed.

24. The rule nisi is made absolute. It
is ordered that the minor be set at liberty by
respondent nos.6 to 9 and delivered into
custody of the mother, Smt. Reetu within a
week of the date of this judgment. In case
the custody of the minor is not delivered by
respondent no.8 or respondent no.9, or any
of the respondent nos.6 to 9, the learned
Chief Judicial Magistrate, Etah shall cause
it to be delivered to the first petitioner, Smt.
Reetu by employment of necessary force
through the Superintendent of Police, Etah.
The Superintendent of Police, Etah is
ordered to act in aid of the learned Chief
Judicial Magistrate, Etah in the matter. It is
further ordered that on the first Sunday of
every month between 10:00 a.m. to 2.00
p.m., the first petitioner, Smt. Reetu shall
permit respondent nos.8 and 9 to meet the
minor, Mohan @ Bholey at her residence.
During each such visit, the first petitioner
shall extend all due courtesy to respondent
nos.8 and 9 and will wholesomely facilitate
the meeting.

25. Let this order be communicated
forthwith
by
the
Joint
Registrar
(Compliance) to the learned District Judge,
Etah, the learned Chief Judicial Magistrate,
Etah and the Superintendent of Police,
Etah.
----------
(2020)09ILR A 51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2020

BEFORE

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

Habeas Corpus Writ Petition No. 410 of 2020

Smt. Madhubala Mishra & Anr. ...Petitioners
Versus
Shyam Dhar Dubey & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vivek Tiwari, Sri K.S. Tiwari

Counsel for the Respondent:
G.A.

A. Constitution of India -Article 226-Writ
of Habeas Corpus-Free will - Old lady
living with her one daughter-Judicial
Magistrate recorded her statement - No
illegal confinement -Held, no good ground
to make the rule nisi absolute. (Para 4 and
5)

Writ Petition dismissed. (E-1)

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

1. In compliance with the rule nisi
issued by this Court vide order dated
24.08.2020, the learned Chief Judicial
Magistrate, Jaunpur nominated a lady
Judicial Officer to go over to the residence
of the detenue, Smt. Prabhawati Devi, who
stays with her other daughter Manju Devi
Dubey and to record her statement. This
rule nisi was issued to ascertain whether
Smt. Prabhawati is staying with respondent
no. 2, Manju Devi Dubey of her free will or
she is illegally confined.

2. This modified rule was issued
looking to the extraordinary circumstances