# Takbeer Singh (Minor) v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-12
- **Case number:** Habeas Corpus Writ Petition No. 256 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/takbeer-singh-minor-v-state-of-u-p-ors-49459
- **Pages:** 5

## Headnote

Law
-
Constitution
of
India,1950-Article 226-mother of detenue
prayed for a direction to recover the
detenue/ his three years and 7 months
child from respondent no. 4/ father-
father of the detenue is a drunkard and he
is facing rape charges-Since, respondent
no. 4 is facing trial for the heinous
offence, in this peculiar facts, the custody
of the detenue should be given to her
mother-Accordingly, opposite party no. 4
is directed to hand over the custody of the
detenue
to
the
deponent
of
the
petition/mother.(Para 1 to 18)

B. Mulla in Principles of Mohammedan Law
has observed that the right of mother to
custody of infant children. The mother is
entitled to the custody of her male child
until he has completed the age of seven
years and of her female child until she
attained
puberty.
The
right
continues
though she is divorced by the father of the
child, unless she marries a second husband
in which case the custody belongs to the
father. (Para 12)

The writ petition is disposed of. (E-6)

List of Cases cited:

## Text

12 All. Takbeer Singh (Minor) Vs. State of U.P. & Ors.
129

50. In the result, there is no force in
this appeal, which stands dismissed with
costs.

51. The interim stay order passed in
this appeal is hereby vacated.
----------
(2023) 12 ILRA 129
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 256 of 2022

Takbeer Singh (Minor) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gibran Akhtar Khan, Mohammad Asmar
Ansari

Counsel for the Respondents:
G.A., Brijesh Kumar Yadav, Prabhoo Dayal

A.
Criminal
Law
-
Constitution
of
India,1950-Article 226-mother of detenue
prayed for a direction to recover the
detenue/ his three years and 7 months
child from respondent no. 4/ father-
father of the detenue is a drunkard and he
is facing rape charges-Since, respondent
no. 4 is facing trial for the heinous
offence, in this peculiar facts, the custody
of the detenue should be given to her
mother-Accordingly, opposite party no. 4
is directed to hand over the custody of the
detenue
to
the
deponent
of
the
petition/mother.(Para 1 to 18)

B. Mulla in Principles of Mohammedan Law
has observed that the right of mother to
custody of infant children. The mother is
entitled to the custody of her male child
until he has completed the age of seven
years and of her female child until she
attained
puberty.
The
right
continues
though she is divorced by the father of the
child, unless she marries a second husband
in which case the custody belongs to the
father. (Para 12)

The writ petition is disposed of. (E-6)

List of Cases cited:

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

2. Amal Irfa Vs St. of U.P. & ors. HABC NO 12616
of 2014

3. Yashita Sahu Vs St. of Raj. (2020) 3 SCC 67

4. Roxann Sharma Vs Arun Sharma (2015) AIR SC
2232
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Case called out in the revised list.

2. Learned counsel for the petitioner and
learned A.G.A. for the State-respondent is
present however, none appears on behalf of
respondent No.4.

3. Since the respondent No.4 did not
appear on the last date i.e. 22.11.2023 therefore,
stop order was passed by the court that in case no
one appears for respondent No.4, the matter may
be decided finally hence this Court proceeds to
decide the matter finally.

4. This petition has been filed by the
mother of the detenue-Takbeer Khan, aged about
3 years and 7 months now, praying for a
direction for respondent Nos.2 and 3 to recover
and produce the detenue before this Court after
liberating him from the custody of opposite party
No.4.

5. This Court vide interim order dated
15.09.2022 granted visiting rights to the
130 INDIAN LAW REPORTS ALLAHABAD SERIES
deponent. It is submitted on behalf of the
petitioner that neither the opposite party
No.4 is represented before this Court nor
the visiting rights granted to the deponent
vide interim order dated 15.09.2022 are
being properly complied with. At times
they are complied and at times they are not
complied.

6. Learned counsel for the
petitioner submits that detenue is presently
in the custody of opposite party No.4Intiyaj Khan, husband of the deponent.
Both deponent and opposite party No.4
have married on 09.05.2017. It is submitted
that after the marriage, the respondent No.4
used to beat Rehana (mother of the
detenue) under influence of alcohol. Out of
their wedlock, their son Takbeer Khan
(detenue) was born on 03.03.2020. Due to
atrocities committed by respondent No.4,
the deponent returned to her parental home
along with her son in the year 2021. After
some time, she again went to her
matrimonial home and started living with
her
husband
(opposite
party
No.4)
however, the conduct of opposite party
No.4 did not change. In the meantime, a
case under Sections 363, 366, 376 IPC read
with
Section
3/4
POCSO
Act
was
registered as Case Crime No.1337 of 2017
at P.S. Thakurganj, District Lucknow in
which opposite party No.4 was chargesheeted and remained in jail for almost a
year and ultimately was released on bail on
18.01.2019. After being released, opposite
party No.4 again involved in extra marital
affairs with another woman which was
objected by the deponent-Rehana and she
informed the same to her parents. After
which, opposite party No.4 on 15.06.2022
compelled her to leave her matrimonial
house however, forcefully detained the
detenue-Takbeer Khan from the custody of
Rehana since then she is making all efforts
to bring back her son Takbeer Khan. The
deponent also went to Police Station-Para,
District-Lucknow on 20.07.2022 and gave
application
which
is
on
record
as
Annexure-3 to the petition.

7. It is submitted on behalf of the
petitioner that the detenue-Takbeer Khan
has been illegally detained by opposite
party No.4 who is a drunkered and an
accused in a rape case and has already been
in custody over a period of one year and
thus, considering the overall interest of the
detenue, it will not be safe to leave the
detenue in the custody of such person who
is facing rape charges and is alcoholic.

8. Learned A.G.A. has submitted that
a perusal of annexure 2 of the petition
shows that father of the detenue namely,
Intiyaj Khan is facing rape charges in Case
Crime No.1337 of 2017, under Sections
363, 366, 376 IPC read with Section 3/4
POCSO Act, P.S. Thakurganj, District
Lucknow.

9. Perused the record.

10. It is not disputed that detenue
while filing the petition was 2 years old and
presently around 3 years and 7 months old.
It is also not disputed between the parties
that opposite party No.4 is facing rape
charges. Specific averments regarding the
Case Crime No.1337/2017, under Sections
363, 366, 376 IPC read with Section 3/4
POCSO Act have been levelled in para 9 of
the petition which have not been denied by
respondent No.4 while filing the counter
affidavit rather it has been stated that
opposite party No.4 has been falsely roped
due to ulterior motive and trial is going on
and he is on bail. The opposite party No.4
while filing the counter affidavit has raised
a preliminary objection that petition has
12 All. Takbeer Singh (Minor) Vs. State of U.P. & Ors.
131
been filed on misleading facts and by
concealing the divorce/compromise which
took place between the parties on certain
terms and conditions and as per those terms
and conditions, the alleged detenue was left
with the custody of opposite party No.4.
The copy of the compromise is on record as
Annexure-CA-1 which is extracted below:-

"मैं इस्ियाज खान पुत्र िसीम खान
वनिासी बुद्धेश्वर बादल खेडा थाना पारा का हों
मेरी शादी/वनकाह वदनाोंक-9/5/2017 को रेहाना
पुत्री रशीद खान वन० मतीनपुरिा खुरथमनगर
लखनऊ के साथ हुआ था। वििाह उपराि दोनो
पक्षो में मतभेद उत्पन्न हो गये है अब साथ-साथ
रहना सम्भि नही है इस कारण दोनो पक्ष अपने-
अपने
पररिार
की
सहमवत
से
तलाकनामा/सुलहनामा कर रहे है इस्ियाज
खान तीन तलाक दे वदया है वजसे समक्ष गिाहान
रेहाना स्वीकार करती है। दहेज की वलस्ट के
अनुसार इस्ियाज खान ने रेहाना को दहेज का
सामान िापस कर वदया है रेहाना ने भी इस्ियाज
खान का सामान िापस कर वदया है आज
वदनाोंक 15/6/2022 से दोनो पक्षो के पवत पत्नी के
ररश्ते समाप्त हो गये है अब कोई एक दूसरे से
कोई िास्ता ि सरोकार नही रखेगे न ही कोई
वकसी के ऊपर मुकदमा आवद दास्खल करेगे
दोनो पक्ष अपनी-अपनी शादी/वनकाह अलगअलग करे वकसी को कोई आपवि नही होगी
कोई वकसी से भविष्य में वमलेगा नही। बेिे
तकिीर खान को इस्ियाज खान ले रहे है।

वलहाजा यह तलाकनामा/सुलहनामा
समक्ष गिाहान वलखिा वदया तावक सनद रहे ि
िक्त जरुरत पर काम आिे।"

11. The opposite party No.4 has
admitted that he is facing rape charges.
While deciding the writ of habeas corpus,
this Court is not adjudicating the rights of
either of the parties. The undisputed fact
that opposite party No.4 is facing rape
charge is required to be considered by this
Court as it questions the very character of
opposite party No.4 in Nil Ratan Kundu
and
another
versus
Abhijit
Kundu
reported in [(2008) 9 SCC 413]. It was held
that character of the proposed guardian is
required to be considered to determine the
suitability of the spouse to have custody of
the minor child. The relevant para 72 of Nil
Ratan Kundu (supra) are extracted below:-

"72. In our considered opinion,
on the facts and in the circumstances of the
case, both the Courts were duty bound to
consider
the
allegations
against
the
respondent
herein
and
pendency
of
criminal case for an offence punishable
under Section 498A, IPC. One of the
matters which is required to be considered
by a Court of law is the `character' of the
proposed guardian. In Kirit Kumar, this
Court, almost in similar circumstances
where the father was facing the charge
under Section 498-A, IPC, did not grant
custody of two minor children to the father
and allowed them to remain with maternal
uncle. Thus, a complaint against father
alleging and attributing death of mother
and a case under Section 498-A, IPC is
indeed a relevant factor and a Court of law
must address to the said circumstance
while deciding the custody of the minor in
favour of such person. To us, it is no
answer to state that in case the father is
convicted, it is open to maternal grand
parents to make an appropriate application
for change of custody. Even at this stage,
the said fact ought to have been considered
and appropriate order ought to have been
passed."

12. A perusal of the judgment in Nil
Ratan Kundu's case (supra), it is clear that
pendency of a criminal case is definitely
one of the important considerations for
132 INDIAN LAW REPORTS ALLAHABAD SERIES
assessing the character of the proposed
guardian. The opposite party No.4 in this
case is facing heinous charge like rape
which cannot be lost sight of while
exercising the jurisdiction of habeas
corpus. The primary consideration for this
Court is to protect and watch for the right
of the minor child which has approached
this Court. The ultimate well being and
welfare of the child as well as future
prospect of the child have to be borne in
mind while adjudicating this jurisdiction.
This Court is not concerned with the right
of
the
respective
parties
such
as
compromise/divorce
etc.
in
these
proceedings. The deponent of the petition is
none other than the mother of the detenue,
aged about 3 years and 7 months old.
According to the Mohammedan Law,
mother is entitled to custody (hizanat) of a
male child until he completes the age of 7
years. The Co-ordinate Bench of this Court
in the case of Amal Irfa vs. State of U.P. &
2 others, HABC No.12616 of 2014 has
held as under:-

"13. Mulla in Principles of
Mohammedan
Law
Para
353
(18th
Edition)) has observed:

" Right of mother to custody of
infant children. The mother is entitled to
the custody (Hizanat) of her male child
until he has completed the age of seven
years and of her female child until she has
attained puberty. The right continues
though she is divorced by the father of the
child, unless she marries a second husband
in which case the custody belongs to the
father."

14. A.H.A Fyzee in Book Outline
of Mohammedan Law IVth Edition has
stated:

"Mother: Custody of an infant
child belongs to the mother and this right is
known as Hizanat. The mother is entitled in
Muslim Law to the custody of her male
child till the age of 7 years and of her
female child till puberty"."

13. This writ petition has been
filed by the mother of the detenue seeking
the custody of her child from opposite party
No.4 father of the detenue which has been
held to be very much maintainable by the
Supreme Court in the case of Yashita Sahu
vs. State of Rajasthan reported in [(2020) 3
SCC 67] emphasis is on para 10 which is
extracted below:-

"9. It is too late in the day to urge
that a writ of habeas corpus is not
maintainable if the child is in the custody of
another parent. The law in this regard has
developed a lot over a period of time but
now it is a settled position that the court
can
invoke
its
extraordinary
writ
jurisdiction for the best interest of the
child. This has been done in Elizabeth
Dinshaw vs. Arvand M. Dinshaw, (1987) 1
SCC 42: 1987 SCC (Crl) 13], Nithya
Anand Raghavan vs. State (NCT of Delhi)
[Nithya Anand Raghavan v. State (NCT of
Delhi), (2017) 8 SCC 454 : (2017) 4 SCC
(Civ) 104 and Lahari Sakhamuri vs.
Sobhan Kodali [Lahari Sakhamuri vs.
Sobhan Kodali, (2019) 7 SCC 311 : (2019)
3 SCC (Civ) 59] among others. In all these
cases the writ petitions were entertained.
Therefore, we reject the contention of the
appellant-wife that the writ petition before
the High Court of Rajasthan was not
maintainable."

14. The opposite party No.4 remains
under the influence of alcohol. He is an
illiterate, careless and rigid kind of person
who has also illicit relationship with other
woman and the fact remains that deponent
is the mother of the detenue, aged about 3
years and 7 months, and ordinarily the
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
133
custody of the minor who is just 3 years
and 7 months of age vests with the mother
as observed by the Supreme Court in the
case of Roxann Sharma vs. Arun Sharma
reported in [AIR 2015 (SC) 2232].

15. A coordinate Bench of this Court
in Reshu alias Nitya and others versus
State of U.P. and others (2021)6 ALJ 632
while considering the similar allegations
and also considering the judgment in Nil
Ratan Kuundu's case (supra) in detail has
held as under in para 58 :

"58. The aforementioned facts do
not indicate that the custody of the minor
with the respondent no. 4 can in any
manner be said to amount to an illegal and
improper detention. The child from her
infancy, when she was of a tender age,
appears to be living with her maternal
grand-father. This together with the fact
that the father who is claiming custody is
named as an accused in a criminal case
relating to the death of the mother of the
corpus, would also be a relevant factor.
The other considerations which would have
a material bearing would be the necessity
of the child being provided loving and
understanding care, guidance and a warm
and compassionate relationship in a
pleasant home, which are essential for the
development to the child's character and
personality."

16. Thus, keeping in view the law
laid down by the Supreme Court in the case
of Nil Ratan Kundu (supra) the fact that
deponent is facing trial for the heinous
offence committed upon the minor and
considering the tender age of the detenue,
in peculiar facts of this case, this Court is
of the view that custody of the detenue
should be given to the deponent-Rehana.

17. Accordingly, the writ of habeas
corpus is issued directing the opposite party
No.4 to hand over the custody of the
detenue to the deponent of the petition
namely, Rehana forthwith. The respondent
Nos.2 and 3 shall ensure the compliance of
this order.

18. Before parting with, it is made
clear that this Court has passed this order
considering the emergent need to intervene
and
looking
to
the
welfare
and
safeguarding in the interest of detenue. This
Court has not adjudicated the rights of the
parties to have the custody of the detenue.
All pleas are left open to the parties to get
their rights decided regarding the custody
of the detenue before the competent court.
This order shall be subject to any order
passed by the said court in the appropriate
proceedings.

With the aforesaid observations,
the petition stands disposed of.
----------
(2023) 12 ILRA 133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

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

Matters Under Article 227 No. 2940 of 2017
(Civil)

Rajendra Singh Jayas ...Petitioner
Versus
Sri Vishal Khurana ...Respondent

Counsel for the Petitioner:
Sri Pankaj Agarwal, Sri Shivam Agrawal, Sri
Pramod Kumar Jain (Sr. Advocate)

Counsel for the Respondent: