# Sushil Kumar Tiwari & Ors v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** Habeas Corpus Writ Petition No. 632 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-tiwari-ors-v-state-of-u-p-ors-47644
- **Pages:** 7

## Headnote

Constitution of India, 1950 - Article 226 -
Habeas Corpus writ petition - custody of
minor child - father alleging that corpus is
under illegal custody of his biological
mother- Held - In a child custody matter, a
writ
of
habeas
corpus
would
be
entertainable where it is established that
the detention of the minor child by the
parent or others is illegal and without
authority of law - custody of the child with
his mother is not unlawful - only 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 - in the
present case, father, can take resort to the
substantive statutory remedy in respect of
his claim regarding custody/visitation of
the child. (Para 18, 19)

Dismissed. (E-5)

List of Cases cited:

## Text

1 All. Sushil Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
1167

8. Thus, in view of the above, the
remedy, if any, for the petitioner is to
approach the concerned Magistrate in
respect of his grievance, the present habeas
corpus writ petition before this Court is not
maintainable.

9. With the above observation and
direction, the present habeas corpus writ
petition is being finally disposed of.
----------
(2022)01ILR A1167
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

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

Habeas Corpus Writ Petition No. 632 of 2021

Sushil Kumar Tiwari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Maqsood Ahmad Beg, Sri Naiyar
Masroof Siddiqui

Counsel for the Respondents:
G.A.

Constitution of India, 1950 - Article 226 -
Habeas Corpus writ petition - custody of
minor child - father alleging that corpus is
under illegal custody of his biological
mother- Held - In a child custody matter, a
writ
of
habeas
corpus
would
be
entertainable where it is established that
the detention of the minor child by the
parent or others is illegal and without
authority of law - custody of the child with
his mother is not unlawful - only 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 - in the
present case, father, can take resort to the
substantive statutory remedy in respect of
his claim regarding custody/visitation of
the child. (Para 18, 19)

Dismissed. (E-5)

List of Cases cited:

1. Rachhit Pandey (Minor) & anr. Vs St. of U.P.
& ors. 2021 (2) ADJ 320

2. Master Manan @ Arush Vs St. of U.P. & ors.
2021 (5) ADJ 317

3. Krishnakant Pandey (Corpus)& ors. Vs St. of
U.P. & ors. 2021 2 AWC 1053 ALL

4. Master Tarun @ Akchhat Kumar & anr. Vs St.
of U.P. & ors. 2021 (6) ADJ 23

5. Priyanshu (Minor) Vs St. of U.P.& ors. 2021
(7) ADJ 438

6. Vahin Saxena (Minor Corpus) & anr. Vs St. of
U.P. & ors. 2021 SCC OnLine All 593

7. Reshu @ Nitya & ors. Vs St. of U.P. & ors.
Habeas Corpus Writ Petition No. 9 of 2020,
decided on 22.10.2021

8. Mohammad Ikram Hussain Vs St. of U.P. &
ors. AIR 1964 SC 1625

9. Kanu Sanyal Vs District Magistrate Darjeeling
(1973) 2 SCC 674

10. Sayed Saleemuddin Vs Dr. Rukhsana & ors.
(2001) 5 SCC 247

11. Nithya Anand Raghvan Vs St. (NCT of Delhi)
& anr. (2017) 8 SCC 454

12. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors. (2019) 7 SCC 42

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Maqsood Ahmad Beg,
learned counsel for the petitioners and Sri
Vinod Kant, learned Additional Advocate
General assisted by Sri Arvind Kumar,
learned Additional Government Advocate
appearing for the State respondents.

2. The petitioner no. 1 asserting
himself to be the father of the petitioner no.
2-corpus, has filed the present habeas
corpus petition alleging that the corpus is
under illegal custody of his motherrespondent no. 4.

3. Pleadings in the petition are to the
effect that the marriage of petitioner no. 1
was solemnized with respondent no. 4 on
09.06.2010 and the petitioner no. 2 was
born on 23.08.2015 and that the petitioner
no. 1 and the respondent no. 4 are living
separately for the past several years. It is
averred that the petitioner no. 1 has filed a
divorce petition and the respondent no. 4
has also instituted certain legal proceedings
against the petitioner no. 1. An application
stated to have been filed before the local
police authorities some time in the year
2020, has been appended along with the
petition wherein it is stated that the
petitioner-corpus (stated to be of age about
five years at that point of time) had been
taken away by his mother-respondent no. 4,
about three years earlier. Based on the
aforestated facts, the present petition
seeking a writ of habeas corpus has been
filed.

4. Sri Vinod Kant, learned Additional
Advocate General appearing along with Sri
Arvind
Kumar,
learned
Additional
Government
Advocate
for
the
State
respondents, submits that instructions have
been received to the effect that criminal
proceedings, pursuant to a complaint case
instituted by the respondent no. 4, are
pending, which fact has not clearly been
placed on record. It is further submitted
that as per the admitted facts, the petitioner
no.2-corpus being in the custody of his
biological mother since the time when he
was an infant of about two years of age, the
same cannot be held to amount to illegal
detention, and accordingly the present
petition seeking a writ of habeas corpus
would not be entertainable. Reliance has
been placed upon recent decisions of this
Court in Rachhit Pandey (Minor) And
Another vs. State of U.P. and 3 others1,
Master Manan @ Arush vs. State of U.P.
and 8 others2, Krishnakant Pandey
(Corpus) And 2 Others vs. State of U.P.
And 3 Others3, Master Tarun @
Akchhat Kumar And Another vs. State
of U.P. And 3 Others4, Priyanshu
(Minor) vs. State of U.P. And 5 Others5,
Vahin Saxena (Minor Corpus) and
another Vs. State of U.P. and others6
and Reshu @ Nitya and others Vs. State
of U.P. and others7

5. In order to appreciate the rival
contentions, the ambit and scope of
exercise of powers for grant of a writ of
habeas corpus in such matters would be
required to be adverted to.

6. The writ of habeas corpus is a
prerogative writ and an extraordinary
remedy. It is writ of right and not a writ of
course and may be granted only on
reasonable ground or probable cause being
shown, as held in Mohammad Ikram
Hussain vs. State of U.P. and others8 and
Kanu Sanyal vs. District Magistrate
Darjeeling9.

7. The object and scope of a writ of
habeas corpus in the context of a claim
relating to custody of a minor child fell for
consideration in Sayed Saleemuddin vs.
1 All. Sushil Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
1169
Dr. Rukhsana and others10, and it was
held that in a habeas corpus petition
seeking transfer of custody of a child from
one parent to the other, the principal
consideration for the court would be to
ascertain whether the custody of the child
can be said to be unlawful or illegal and
whether the welfare of the child requires
that the present custody should be changed.
It was stated thus:-

"11. ...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..."

8. Taking a similar view in the case of
Nithya Anand Raghvan v State (NCT of
Delhi) and another11, it was held that 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 relevant observations made
in the judgement are as follows:-

"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, (1973) 2
SCC 674, 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 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, (2001) 5
SCC 247, 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
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42, 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 Vs. State (NCT of Delhi),
2004 SCC OnLine Del 699, relied upon by
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
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
prescribed remedy for getting custody of
the child."

9. The question of maintainability of a
habeas corpus petition under Article 226 of
the Constitution of India for custody of a
minor was examined in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad
Tewari and others12, and it was held that
the petition would be maintainable where
detention by parents or others is found to
be illegal and without any authority of law
and
the
extraordinary
remedy
of
a
prerogative writ of habeas corpus can be
availed in exceptional cases where ordinary
remedy provided by the law is either
unavailable or ineffective. The observations
made in the judgment in this regard are as
follows:-

"14. Writ of habeas corpus is a
prerogative process for securing the liberty
of the subject by affording an 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 is treated as equivalent to illegal
detention for the purpose of granting writ,
directing custody of the minor child. For
restoration of the custody of a minor from a
person who according to the personal law,
is not his legal or natural guardian, in
appropriate cases, the writ court has
jurisdiction.

x x x

19. Habeas corpus proceedings is
not to justify or examine the legality of the
1 All. Sushil Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
1171
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 of
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."

10. The exercise of the extraordinary
jurisdiction for issuance of a writ of habeas
corpus would, therefore, be seen to be
dependent on the jurisdictional fact where
the applicant establishes a prima facie case
that the detention is unlawful. It is only
where the aforementioned jurisdictional
fact is established that the applicant would
become entitled to the writ as of right.

11. 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.

12. 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.

13. The role of the High Court in
examining cases of custody of a minor, in a
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. 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.

15. In the facts of the present case it is
undisputed that the petitioner no. 2,
presently of age about six years, is stated to
be under the exclusive care and custody of
his mother-respondent no.4, since the time
when he was an infant of about two years
of age. It is also admitted position that the
petitioner no. 1 and the respondent no. 4
are living separately for quite some time
and also certain other legal cases are
pending between the parties.

16. The subject matter relating to
custody of children during the pendency of
the proceedings under the Hindu Marriage
Act, 195513 is governed in terms of the
provisions contained under Section 26
thereof. The aforesaid section applies to
"any proceeding" under the HMA and it
gives power to the court to make provisions
in regard to: (i) custody, (ii) maintenance,
and (iii) education of minor children. For
this purpose the court may make such
provisions in the decree as it may deem just
and proper and it may also pass interim
orders
during
the
pendency
of
the
proceedings and all such orders even after
passing of the decree.

17. The provisions under Section 26
of the HMA were considered in Gaurav
Nagpal v Sumedha Nagpal14, and it was
held as follows:-

"Section
26
of
the
Hindu
Marriage Act, 1955 provides for custody of
children
and
declares
that
in
any
proceeding under the said Act, the Court
could make, from time to time, such
interim orders as it might deem just and
proper
with
respect
to
custody,
maintenance and education of minor
children, consistently with their wishes,
wherever possible."

18. 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. In the present case, the
private respondent is none other than the
biological mother of the minor child. This
being the fact, it may be presumed that the
custody of the child with his mother is not
unlawful. 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
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1173
take resort to the substantive statutory
remedy in respect of his claim regarding
custody of the child.

19. In a child custody matter, a writ of
habeas corpus would be entertainable
where it is established that the detention of
the minor child by the parent or others is
illegal and without authority of law. 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 forum. The remedy ordinarily
in such matters would lie under the Hindu
Minority and Guardianship Act, 195615 or
the Guardians and Wards Act, 189016, as
the case may be.

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

21. The contention which has been
sought to be raised by the counsel for the
petitioner with regard to the father's claim
for custody and/or visitation rights, are
matters which are to be agitated in
appropriate proceedings.

22. Having regard to the aforesaid,
this Court is not inclined to exercise its
extraordinary jurisdiction to entertain the
present petition seeking a writ of habeas
corpus.

23. The petition stands dismissed
accordingly.
----------
(2022)01ILR A1173
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

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

Habeas Corpus Writ Petition No. 671 of 2021

Smt. Jayanti (corpus) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Awadh Bihari Pandey

Counsel for the Respondents:
A.G.A.

Constitution
of
India,
Article
226
-
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 18 (8)
- placement of a child under the care of a
parent, made by the CWC - Habeas Corpus
writ petition - Maintainability - in a case
where the custody of the corpus has been
handed over as per a judicial order passed
a Judicial Magistrate or a court of
competent
jurisdiction
or
a
CWC
constituted under the JJ Act, the said
order cannot be assailed in a petition
seeking a writ of habeas corpus - Habeas
Corpus writ petition not maintainable
(Para 23)

In the present case, petitioner no.1 (minor)
placed under the care of her father-respondent
no.4 pursuant to an order passed by the CWC
exercising powers under the JJ Act and the
Rules made thereunder - Held - custody which
is presently with the father cannot be said to be
illegal and a petition for a writ of habeas corpus
through her husband would not be entertainable
in the facts of the case (Para 24)

Dismissed. (E-5)