# Vahin Saxena (Minor Corpus) & Anr v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Habeas Corpus Writ Petition No. 467 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vahin-saxena-minor-corpus-anr-v-state-of-u-p-ors-47651
- **Pages:** 7

## Headnote

A. Constitution of India - Article 226
-
Habeas
corpus
writ
petition -
Custody
of
minor child
-
parens
patriae jurisdiction i.e. looking into
the welfare of the child - 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
- paramount consideration must be
about the welfare of the child - a writ
of
habeas
corpus
would
be
entertainable
only
where
it
is
established that the detention of the
minor child by the parent or others is
illegal and without authority of law -
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 under the Hindu
Minority
and
Guardianship
Act,
195613 or the Guardians and Wards
Act, 189014 (Para 9, 14, 22)

B. Hindu Marriage Act, 1955 - Section
26 - Custody of children during the
pendency of the proceedings under
HMA
-
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 - court may also
pass
interim
orders
during
the
pendency of the proceedings and all
such orders even after passing of the
decree (Para 19)

Minor child aged about nine years, continuously
under
the
care
and
custody
of
his
mother/respondent who is living separately from
her - not the case of the petitioner/father that the
corpus was forcibly taken away by the mother
from his custody - Held - it may be presumed that
the custody of the child with his mother is not
unlawful - other parent can take resort to the
substantive statutory remedy in respect of his
claim regarding custody of the child - regarding
claim for visitation rights on behalf of the father,
held since Divorce petition pending between the
parties before the Family Court, all ancillary reliefs
& claims are open to be raised before the said
forum.(Para 18, 21)

Dismissed. (E-5)

List of Cases cited :

## Text

198 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A198
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

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

Habeas Corpus Writ Petition No. 467 of 2021

Vahin Saxena (Minor Corpus) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Piyush Dubey

Counsel for the Respondents:
A.G.A., Sri Sanjay Singh

A. Constitution of India - Article 226
-
Habeas
corpus
writ
petition -
Custody
of
minor child
-
parens
patriae jurisdiction i.e. looking into
the welfare of the child - 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
- paramount consideration must be
about the welfare of the child - a writ
of
habeas
corpus
would
be
entertainable
only
where
it
is
established that the detention of the
minor child by the parent or others is
illegal and without authority of law -
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 under the Hindu
Minority
and
Guardianship
Act,
195613 or the Guardians and Wards
Act, 189014 (Para 9, 14, 22)

B. Hindu Marriage Act, 1955 - Section
26 - Custody of children during the
pendency of the proceedings under
HMA
-
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 - court may also
pass
interim
orders
during
the
pendency of the proceedings and all
such orders even after passing of the
decree (Para 19)

Minor child aged about nine years, continuously
under
the
care
and
custody
of
his
mother/respondent who is living separately from
her - not the case of the petitioner/father that the
corpus was forcibly taken away by the mother
from his custody - Held - it may be presumed that
the custody of the child with his mother is not
unlawful - other parent can take resort to the
substantive statutory remedy in respect of his
claim regarding custody of the child - regarding
claim for visitation rights on behalf of the father,
held since Divorce petition pending between the
parties before the Family Court, all ancillary reliefs
& claims are open to be raised before the said
forum.(Para 18, 21)

Dismissed. (E-5)

List of Cases cited :

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

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

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

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

5. Tejaswini Gaud & 5 ors.Vs Shekhar Jagdish
Prasad Tewari & ors. (2019) 7 SCC 42

6. Rachhit Pandey (Minor) & anr. Vs St. of
U.P.& ors. 2021 (2) ADJ 320
1 All. Vahin Saxena (Minor Corpus) & Anr. Vs. State of U.P. & Ors.
199
7. Master Manan @ Arush Vs St. of U.P.&
ors. 2021 (5) ADJ 317

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

9. Master Tarun @ Akchhat Kumar & anr. Vs St.
of U.P. & ors. MANU/UP/0599/2021

10. Priyanshu (Minor) Vs St.of U.P. & ors.
HCWP No. 429 of 2021 dt 2.8.2021

11. Gaurav Nagpal Vs Sumedha Nagpal (2009) 1
SCC 42

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Piyush Dubey, learned
counsel for the petitioners, Sri Sanjay
Singh, learned counsel for respondent no.4
and Ms. Sushma Soni, learned Additional
Government Adovate appearing for State
respondents.

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

3. As per the pleadings in the petition,
the petitioner no.1 is stated to have been born
in the year 2012. On 6.01.2019, the respondent
no.4 is said to have left her matrimonial home
along with her minor child-petitioner no.1 and
since then he is with his mother-respondent
no.4. A divorce petition, registered as Case
No. 1714/2020, is stated to be pending
between the parties before the Principal Judge,
Family Court, Agra.

4. Pursuant to the rule nisi issued on
23.7.2021, the petitioner no.1-corpus has
been produced in court by his motherrespondent no.4, and they have been
identified by Sri Sanjay Singh, learned
counsel for the respondent no.4.

5. Counsel for the parties do not
dispute the fact that the child being a
minor, it would be very difficult to
ascertain his wishes and matters relating to
custody and guardianship may have to be
decided by the Court in exercise of its
parens patriae jurisdiction i.e. looking into
the welfare of the child.

6. Learned Additional Government
Advocate has interacted with the child, in
Court, and submits that child has stated that
he
is
living
comfortably
with
the
respondent no.4, his mother, under her care
and guardianship. The child has stated that
he is being taken good care of and is being
accorded love, affection and guardianship.
There is nothing to suggest that the child is
under any kind of threat or coercion or that
he is under any kind of illegal detention.

7. 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 others1 and
Kanu Sanyal vs. District Magistrate
Darjeeling2.

8. 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.
Dr. Rukhsana and others3, and it was
held that in a habeas corpus petition
seeking transfer of custody of a child from
200 INDIAN LAW REPORTS ALLAHABAD SERIES
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..."

9. Taking a similar view in the case of
Nithya Anand Raghvan v State (NCT of
Delhi) and another4, 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
the appellant]. It is not necessary to
multiply the authorities on this proposition.
1 All. Vahin Saxena (Minor Corpus) & Anr. Vs. State of U.P. & Ors.
201

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."

10. 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
others5, 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
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
202 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

11. A similar view has been taken by
this Court in recent judgements in Rachhit
Pandey (Minor) And Another vs. State of
U.P. and 3 others6, Master Manan @
Arush vs. State of U.P. and 8 others7,
Krishnakant Pandey (Corpus) And 2
Others vs. State of U.P. And 3 Others8,
Master Tarun @ Akchhat Kumar And
Another vs. State of U.P. And 3 Others9,
and Priyanshu (Minor) vs. State of U.P.
And 5 Others10.

12. 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
become entitled to the writ as of right.

13. 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.

14. 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.
1 All. Vahin Saxena (Minor Corpus) & Anr. Vs. State of U.P. & Ors.
203

15. The role of the High Court in
examining cases of custody of a minor, in a
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.

16. 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.

17. Counsel for the petitioners has
fairly admitted that respondent no.4 left her
matrimonial home on 06.1.2019 on account
of differences with the petitioner no.2, and
thereafter, the petitioner no.1-corpus has
been continuously under her custody.
Learned counsel has also not disputed the
fact that the custody of the petitioner no. 1,
minor child of age around nine years, with
his mother cannot be said to be illegal. The
only claim which is sought to be put
forward is for grant of visitation rights.

18. It is therefore, undisputed that the
petitioner no.1, minor child, presently of
age about nine years, has been continuously
under the care and custody of his motherrespondent
no.4,
who
is
living
independently and separately from her
husband since 06.1.2019, the date when she
left her matrimonial home along with the
minor child. It is also not the case of the
petitioner no. 2-father, that the petitioner
no.1-corpus was forcibly taken away by the
mother from his custody.

19. The subject matter relating to
custody of children during the pendency of
the proceedings under the Hindu Marriage
Act, 195511 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.

20. The provisions under Section 26
of the HMA were considered in Gaurav
Nagpal v Sumedha Nagpal12, 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."

21. In a petition for a writ of habeas
corpus concerning a minor child, the Court,
204 INDIAN LAW REPORTS ALLAHABAD SERIES
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
take resort to the substantive statutory
remedy in respect of his claim regarding
custody of the child.

22. 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, 195613 or the Guardians
and Wards Act, 189014, as the case may be.

23. Counsel for the petitioners has not
disputed the aforesaid 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.

24. 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. This would be
more so for the reason that in the case at
hand proceedings under the HMA are
pending between the parties before the
Family Court and all ancillary reliefs and
claims are open to be raised before the said
forum or in other appropriate proceedings.

25. Having regard to the aforestated
facts and circumstances, the rule nisi issued
earlier is not required to be made absolute.
It is discharged.

26. The petitioner no. 1-corpus is at
liberty to go back alongwith the respondent
no.4, his mother to the place from where
they have come.

27. The petition stands accordingly,
dismissed.
----------
(2022)01ILR A204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

P.I.L. Civil No. 28404 of 2021

Sheshmani Nath Tripathi ...Petitioner
Versus
E.C.I., New Delhi & Anr. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents: