# Vedant through his father Vishnu Kumar @ Vishnu Kumar Ayodhyavasi v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** Habeas Corpus Writ Petition No. 26085of 2021
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vedant-through-his-father-vishnu-kumar-vishnu-kumar-ayodhyavasi-v-state-of-u-p-49355
- **Pages:** 6

## Headnote

A. Criminal Law - Constitution of India,1950Article 226 -Indian Penal Code,1860-Sections
498A, 304 B, 506 I.P.C. - sections 3/4 Dowry
Prohibition Act-First Information Report was
registered against the deponent and against his
family members after two years from the death
452 INDIAN LAW REPORTS ALLAHABAD SERIES
of the mother of the detenu-Twice final report
was filed in favour of the petitioner-The second
protest petition, filed against the final report,
was treated as a complaint case and till date,
summoning order has not been passed against
the petitioner-The detenu is presently 4 1/2
years of age- the deceased had made a
statement that while offering prayer, she caught
fire and due to that, she got burn injury-Since
father is the natural guardian under section 6 of
the Guardians & Wards Act, coupled with the
choice of the detenu who is 4 1/2 years old and
has expressed his willingness to reside with the
deponent- Therefore, transferring the custody of
the detenu to respondent No.4 may not be in
the best and overall interest of the child as for
around 4 years, he has lived with his father.
(Para 1 to 12)

B. 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.(Para 8)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

11 All. Vedant through his father Vishnu Kumar @ Vishnu Kumar Ayodhyavasi Vs. State
 of U.P. & Ors.
451
one of the considerations for assessing the
character of the proposed guardian. It is
true that evidence is yet to be led and the
trial is yet to conclude and unless the
accused is convicted, no aspersions can be
cast. However, considering the ratio of the
judgment in Nil Ratan's case (supra), the
fact that the deponent is facing trial for the
murder of his wife cannot be ignored,
which is one of the major factors to be
considered and which goes against him.
This Court has taken note of the fact that
the child since his birth, i.e. almost six
years is residing with respondents 4 to 6
and is pursuing his studies.

7.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."

8.Thus, keeping in view the law laid
down by Supreme Court in the case of Nil
Ratan Kundu, the fact that the deponent is
facing trial for the murder of mother of the
detenu, the detenu is residing since his birth
with his maternal uncle and maternal grand
parent, he is pursuing his education there
and present petition has been filed in the
year 2022, after five years from birth of the
detenu and the delay and laches having not
been explained at all, as also considering
the overall interest and welfare of the
detenu, in peculiar facts of this case, I am
not inclined to issue a writ of habeas corpus
in favour of the petitioner.

9.The petition fails and is accordingly
dismissed. However, the deponent shall
have the visiting rights of the detenu.
Accordingly,
the
deponent
shall
be
permitted to visit the detenu on every first
and third Sunday between 10.00a.m and
5.00p.m.
----------
(2023) 11 ILRA 451
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.11.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 26085of 2021

Vedant through his father Vishnu Kumar @
Vishnu Kumar Ayodhyavasi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ramakar Shukla, Ravindra Gupta

Counsel for the Respondents:
G.A., Abhshek Misra, Anand Dubey, Firoz Ahmad
Khan, Gajendra Singh Chauhan, Saurabh Verma

A. Criminal Law - Constitution of India,1950Article 226 -Indian Penal Code,1860-Sections
498A, 304 B, 506 I.P.C. - sections 3/4 Dowry
Prohibition Act-First Information Report was
registered against the deponent and against his
family members after two years from the death
452 INDIAN LAW REPORTS ALLAHABAD SERIES
of the mother of the detenu-Twice final report
was filed in favour of the petitioner-The second
protest petition, filed against the final report,
was treated as a complaint case and till date,
summoning order has not been passed against
the petitioner-The detenu is presently 4 1/2
years of age- the deceased had made a
statement that while offering prayer, she caught
fire and due to that, she got burn injury-Since
father is the natural guardian under section 6 of
the Guardians & Wards Act, coupled with the
choice of the detenu who is 4 1/2 years old and
has expressed his willingness to reside with the
deponent- Therefore, transferring the custody of
the detenu to respondent No.4 may not be in
the best and overall interest of the child as for
around 4 years, he has lived with his father.
(Para 1 to 12)

B. 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.(Para 8)

The writ petition is allowed. (E-6)

List of Cases cited:

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

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

3. Garv Mishra (Minor) thru his father Anurag
Mishra Vs St. of U.P. & ors. HABC No.24874 of
2019

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition seeks issuance of a
writ in the nature of Habeas Corpus
commanding the opposite party No.4 to
produce the detenu Vedant in Court and
give
him
in
the
custody
of
the
deponent/father Vishnu Kumar alias Vishnu
Kumar Ayodhyavasi Sonar.

2. Heard learned counsel for the
petitioner
and
learned
Additional
Government Advocate as also learned
counsel for respondent No.4.

3. Learned counsel for the petitioner
submits that the marriage of father of the
detenu was solemnised with Aprajita (now
deceased) on 10.2.2018. Out of wedlock,
the detenu was born on 19.4.2019. On
11.11.2019, Aprajita met with an accident
and suffered burn injury. She was taken to
Sushrut Institute of Plastic Surgery Burn
and Trauma at Lucknow, however, she
could not survive and succumbed to the
injuries on 20.11.2019. During treatment,
the doctor recorded the statement of the
deceased wherein she has stated that while
offering prayer, she met with an accidental
burn injury. During her treatment between
11.11.2019 and 20.11.2019, respondent
No.4 and his other family members were
present in the hospital. During all this
period,
they
have
not
levelled
any
allegation against the deponent Vishnu
Kumar.

On 26.7.2021, respondent No.4 took
the detenu to his house and confined him.
The deponent Vishnu Kumar along with his
11 All. Vedant through his father Vishnu Kumar @ Vishnu Kumar Ayodhyavasi Vs. State
 of U.P. & Ors.
453
father went to the house of respondent No.4
to bring his minor son but respondent No.4
Shachindra Dev Arya refused to return the
detenu. In the meantime, due to the dispute
regarding the custody of the detenu
between the parties, an application under
section 156(3) CrPC was given by
respondent No.4 on 21.8.2021.

The deponent filed the present petition
of habeas corpus before this Court on
8.11.2021. After exchange of pleadings,
vide interim order dated 10.12.2021, this
Court has handed over custody of the
detenu to the petitioner. After the custody
was handed over to the petitioner, on
13.12.2021, a first information report
No.342 of 2021 under sections 498-A, 304B, 506 I.P.C. and sections 3/4 Dowry
Prohibition Act, P.S. Musafirkhana, district
Amethi
was
registered
against
the
petitioner and other family members after
more than two years of the death of mother
of the detenu. After investigation, the
investigating officer submitted final report
in favour of the petitioner in first
information report No.342 of 2021 (supra)
on 25.2.2022. A protest petition was filed
by the respondent No.4 and the learned
Magistrate
has
directed
for
further
investigation on the protest application. The
petitioner
deponent performed
second
marriage on 8.7.2022 and the detenu is
enjoying the company of his father and step
mother along with grand parents.

After further investigation, police did
not find any complicity of the deponent and
again a final report was submitted in favour
of the petitioner on 14.10.2022. Second
protest petition was filed by respondent
No.4 on 15.2.2023 which was treated as a
complaint. Till date, no summoning order
has been passed.

Learned counsel for the petitioner has
submitted that the detenu is aged about 4
1/2 years school going child and has been
living with the petitioner since long, and
being father and natural guardian, the
petitioner is entitled custody of the detenu.

In support of his contention, learned
counsel for the petitioner has relied on
judgment in Tejaswini Gaud and others
versus Shekhar Jagdish Prasad Tewari
(2019)7 SCC 42 (paras 14, 19, 21), Garv
Mishra (Minor) through his father Anurag
Mishra versus State of U.P. and others
Habeas Corpus No.24874 of 2019 (paras 5,
11, 14, 15).

4. Per contra, learned counsel for
respondent No.4 has submitted that the
character of the father of the detenu is
suspicious in nature. He has murdered the
mother of the detenu and a complaint case
for the same is pending against him. The
respondent No.4 has proposed to bequeath
a shop featuring glass business in the name
and style of the detenu to look after the
overall welfares of the detenu and his
financial condition. In this context, learned
counsel has relied on Nil Ratan Kundu
and another versus Abhijit Kundu
(2008)9 SCC 413. It is submitted that the
father of the detenu can be summoned at
any moment in the dowry death case, as
such, future of the detenu is at stake and it
will be appropriate to give custody of the
child with respondent No.4.

5. I have considered the submission
and perused the record.

6. The facts which emanate from the
pleadings made and submission advanced
are that the marriage of the mother of the
detenu took place on 10.2.2018. The detenu
was born on 19.4.2019 out of the wedlock.
Late mother of the detenu Aprajita suffered
burn injury and died on 20.11.2019 after
being remained under treatment for nine
days. Between 11.11.2019 and 20.11.2019,
454 INDIAN LAW REPORTS ALLAHABAD SERIES
no allegation was levelled by respondent
No.4 or his family members against the
deponent regarding the death of mother of
the detenu.

This
Court
vide
order
dated
10.12.2021 handed over custody of the
detenu from respondent No.4 to the present
deponent of the petition and since then, he
is living with him. First Information Report
No.342 of 2021 under sections 498A, 304
B, 506 I.P.C. and sections 3/4 Dowry
Prohibition Act was registered against the
deponent and against his family members
on 13.12.2021, i.e. after two years from the
death of the mother of the detenu. Twice
final report was filed in favour of the
petitioner,
i.e.
on
25.2.2022
and
14.10.2022.

The second protest petition, filed
against the final report, was treated as a
complaint case and till date, summoning
order has not been passed against the
petitioner. The detenu is presently 4 1/2
years of age. Lastly, the deceased Aprajita
had made a statement that while offering
prayer, she caught fire and due to that, she
got burn injury. The statement is on record.

The petitioner in para 9 has pleaded
that the custody of the detenu was taken by
respondent
No.4
on
26.7.2021.
The
respondent No.4 while filing first counter
affidavit, though has denied the averments
contained in para 9 of the petition,
however, the date on which the custody of
the detenu was taken has not been given.

Likewise, in the second counter
affidavit dated 8.8.2023 filed by respondent
No.4 again, no specific date has been given
by respondent No.4. On the contrary, it has
been admitted in para 8 that respondent
No.4 participated in the Mundan ceremony
of the detenu on 28.6.2021 and after
attending Mundan ceremony on his request,
the deponent gave the custody of the detenu
to respondent No.4.

7. It has been argued by respondent
No.4 that the deponent/father of the detenu
did not care to look after of his son for two
years. This argument is contrary to record
and pleadings by the parties in the writ
petition. It is evident from the pleadings
that the custody of the detenu was given to
respondent No.4 and it remained with
respondent No.4 till 10.12.2021 when the
custody was again given back to the
deponent and since then, the custody is
with the deponent. So only for a brief
period of more than four months, the
custody remained with respondent No.4.

8. In Tejaswini Gaud and others
versus Shekhar Jagdish Prasad Tewari
and others (2019) 7 SCC 42, Supreme
Court has held that the detention of a minor
by a person who is not entitled to his legal
custody is treated as equivalent to illegal
detention. Relevant paras 14, 19 and 21 are
extracted below :

"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.
11 All. Vedant through his father Vishnu Kumar @ Vishnu Kumar Ayodhyavasi Vs. State
 of U.P. & Ors.
455

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.

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 1 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."

9. While opposing the petition,
learned counsel for respondent No.4 has
relied
on
judgment
in
Kirtikumar
Maheshankar Joshi versus Pradipkumar
Karunashanker Joshi (1992) 3 SCC 573
and submitted that since father was facing
charges under section 498-A I.P.C., custody
to the father was refused.

10. In the case of Kirtikumar (supra),
the detenues were matured enough than
their age. They were intelligent enough to
take decision regarding their choice and
they refused to go with the father. The
accused of that case who was father was
also facing charge under section 498A
I.P.C..

11. This Court has also asked opinion
of the detenu who is currently 4 1/2 years
old and seems to be intelligent enough and
without waiting, he has shown his
inclination towards father and has stated in
clear words that he wants to reside with his
father. In this case, twice final report(s)
have been filed. Although on the second
final report, a protest petition was filed
which was registered as a complaint case,
this court cannot lose sight of the fact that
the first information report was filed after
two years from the date of death of the
mother of the detenu and after custody of
the detenu was transferred by court's order
on 10.12.2021. The first information report
was filed on 13.12.2021.

Summons in this case are yet to be
issued. The trial is yet to commence.
Even, at this stage, it will be premature
to say, particularly in view of the
statement of the deceased before the
doctor that she suffered burn injury
while offering prayer, that the deponent
is even an accused in that case and
therefore, I am of the opinion that the
judgment in Kirtikumar's case (supra) is
distinguishable in view of the peculiar
facts of this case.
456 INDIAN LAW REPORTS ALLAHABAD SERIES

This court has noticed that the detenu
since his birth was residing with his father.
He is presently 4 1/2 years of age and for a
brief period of about four months, he
resided with respondent No.4. He has
expressed his wish to stay with his father.
As said above, even the summons have not
been issued in the complaint case. Charges
are yet to be framed. The father being the
natural guardian is entitled to the custody
of his child in view of the judgment
inTejaswini Gaud's case (supra).

12. On due consideration to the
submission advanced and perusal of the
record, it appears that initially after death
of mother of the detenu on 20.11.2019, the
respondent No.4 was very much present in
the hospital along with the deponent. The
signature of respondent No.4 on the
treatment papers, precisely page No.14 of
the petition, is on record, statement of the
deceased at page 15 before the doctor go to
show that there was no dispute whatsoever
between the parties at that time. Thereafter,
on 26.7.2021, the detenue was taken by
respondent No.4.

It appears that the dispute started when
the deponent wanted custody of the detenu
back from respondent No.4 which was
given by him temporarily which was
resisted by respondent No.4 and then, after
two years, he filed an application under
section 156(3) CrPC on 21.8.2021 on
which
first
information
report
was
registered on 13.12.2021.

Considering the fact that the custody
of the detenu has been given back to the
deponent by this court vide order dated
10.12.2021, father is the natural guardian
under section 6 of the Guardians & Wards
Act, coupled with the choice of the detenu
who is 4 1/2 years old and has expressed
his willingness to reside with the deponent
who is father, in peculiar facts of this case,
I am of the opinion that at this stage,
transferring the custody of the detenu to
respondent No.4 may not be in the best and
overall interest of the child as for around 4
years, he has lived with his father.

For the reasons aforesaid, the petition
is allowed and the interim order dated
10.12.2021 is confirmed. The deponent is
permitted to continue with custody of the
detenu, however, the respondent No.4 shall
have the visiting rights on every fortnight
on Sunday between 10.00a.m. and 5.00p.m.
at the residence of the deponent. However,
in case of changed circumstance by virtue
of Court's order, it shall be open for
respondent No.4 to approach this Court for
change of custody.
----------
(2023) 11 ILRA 456
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

S.C.C. Revision No. 25 of 2021

Umesh Chand ...Revisionist
Versus
Pappu ...Respondent

Counsel for the Revisionist:
Sri Rahul Pandey, Sri Gaurav Gautam

Counsel for the Respondent:
Ms. Babita Upadhyay, Sri Sanjeev Kumar Gaur

Non speaking judgment and decree-Suit
filed for arrear of rent and ejectment of the
defendant-respondent from the shop-various
papers/documents were filed by the parties
before the court below - without considering the
same, the issue no. 1 decided against the
plaintiff-revisionist-judgment should be a selfcontained document -from which it should
appear as to what were the facts of the case