# Vinayak Tripathi (Corpus) & Anr v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 616
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Habeas Corpus Writ Petition No. 2583 of 2017
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinayak-tripathi-corpus-anr-v-state-of-u-p-ors-47898
- **Pages:** 12

## Headnote

G.A., Sri Ashutosh Mishra, Sri Raghvendra
Prakash, Sri Dhiraj Srivastava

Habeas Corpus-Petitioner is father of the
corpus-natural guardian-corpus is in custody
of opposite parties-they are not the parents of
the child-they took undue benefit of the
situation and took away the child-without
permission-when Petitioner was involved in
looking after his wife in hospital as she
sustained burn injuries due to an accidentCustody of his son is Petitioner's legal right-no
any criminal case is there against the
Petitioner-Earns sufficient money to take care
of
corpus-Opposite
parties
failed
to
substantiate that the Petitioner no.2 (father)
is not a suitable guardian-Respondents to
hand over the custody of the child to the
Petitioner no.2 at his residence-Opposite
parties shall have access to the child for a
period
of
four
months
at
petitioner's
residence.

Petition allowed. (E-9)
List of Cases cited:

## Text

_Characters 0–39,993 of 41,109. This is a partial read: ask again with offset=39993 for what follows._

616 INDIAN LAW REPORTS ALLAHABAD SERIES
during their visit at respective houses to
meet the child.

IV. The Investigating Officer is
directed to organize a mediation between
parties as well as, if necessary, organize a
counselling session for parents also.

I. CONCLUDING REMARKS

16. As observed above, in a case of
inter-parental conflict, a child may be
affected by relationship distress and may
develop loyalty conflict and parental
alienation, therefore, parents are advised to
settle their differences to fulfill the wish of
Corpus which he expressed before this
Court that he wants to live alongwith his
younger brother father and mother as a
family and wants to hold their hands to go
his home alongwith his younger brother to
live peacefully and happily.

J. ORDER

17. The prayers made in this habeas
corpus petition are rejected and it is
disposed of with above referred directions.
----------
(2022) 11 ILRA 616
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Habeas Corpus Writ Petition No. 2583 of 2017

Vinayak Tripathi (Corpus) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajeev Ranjan Tripathi, Sri Rajiv Lochan
Shukla, Sri Vijay Kumar Ojha
Counsel for the Respondents:
G.A., Sri Ashutosh Mishra, Sri Raghvendra
Prakash, Sri Dhiraj Srivastava

Habeas Corpus-Petitioner is father of the
corpus-natural guardian-corpus is in custody
of opposite parties-they are not the parents of
the child-they took undue benefit of the
situation and took away the child-without
permission-when Petitioner was involved in
looking after his wife in hospital as she
sustained burn injuries due to an accidentCustody of his son is Petitioner's legal right-no
any criminal case is there against the
Petitioner-Earns sufficient money to take care
of
corpus-Opposite
parties
failed
to
substantiate that the Petitioner no.2 (father)
is not a suitable guardian-Respondents to
hand over the custody of the child to the
Petitioner no.2 at his residence-Opposite
parties shall have access to the child for a
period
of
four
months
at
petitioner's
residence.

Petition allowed. (E-9)
List of Cases cited:
1. Captain Dushyant Somal Vs Smt. Sushma
Somal & ors.; reported in 1981(2) SCC 277

2. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors.; 2019 (3) SCC (Criminal
433)

3. Queen Bench namely Queen Vs Clarke (1857)
7 EL & BL 186: 119, ER 1217 Lord Campbell,
C.J., said at p. 193

4.
Manju
Malini
Sheshachalam
Vs
Vijay
Thirugnanam & ors.; 2018 SCC Online Kar 621

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

6. Gaurav Nagpal Vs Sumedha Nagpal, (2009) 1
SCC 42

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

8. Gaurav Nagpal Vs Sumedha Nagpal reported
in (2009) 1 SCC 4
11 All. Vinayak Tripathi (Corpus) & Anr. Vs. State of U.P. & Ors.
617
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Vijay Kumar Ojha,
learned counsel for the petitioners, Sri
Dhiraj Srivastava, learned counsel for the
respondent nos.3 & 4, Sri Mithlesh Kumar,
learned AGA for the State and perused the
record.

2. By means of this petition, the
petitioner no.2 has sought writ of Habeas
Corpus, directing the respondents to
produce the corpus (petitioner no.1),
namely, Vinayak Tripathi before this Court
and further prayed that the custody of the
petitioner no.1 may be handed over to the
petitioner no.2.

3. At the very outset, learned counsel
for the opposite party nos.3 and 4 has
raised preliminary objection regarding
maintainability of the instant Habeas
Corpus petition. He submits that writ of
Habeas Corpus cannot be issued where
there is an statutory alternative remedy is
available to the person aggrieved and as
such if there is any grievance to the
petitioner no.2, he can take the recourse of
invoking the relevant provisions of Hindu
Minority and Guardianship Act, 1956
(hereinafter referred to as the ''Act 32 of
1956') or he may approach the court of civil
competence. Further submitted that after
the death of the mother, the child is gladly
living with the grand maternal parents and
now his admission has got done, in a
reputed school and he is pursuing his study.
Adding his contention, he submits that the
writ of Habeas Corpus can be issued in an
event where the custody is unlawful and
that can be termed as illegal detention. He
argued that in the instant matter, neither the
child was abducted nor that was taken away
unlawfully from the lawful guardianship of
his father. Further submission is that, for
providing custody of a minor child, is to be
examined on the ground of consideration of
not only legal right of the parties but more
importantly the welfare of child. In the
instant matter, the child is living with the
opposite party nos.3 and 4 for last 7 to 8
years and the petitioner no.2 did not make
any effort or objection for his custody
though admittedly, the fact was in his
knowledge that the child is in custody of
them. He added that at the very inception,
the child was taken away by opposite party
nos.3 and 4 when no one was there, to look
after the child. He added that the mother of
the child as well as child were ailing with
serious burn injuries and the opposite party
Nos.3 and 4 were looking after them. Thus,
the submission is that the custody of the
child with opposite party nos.3 and 4
cannot be termed as illegal detention, and
therefore, the writ of Habeas Corpus would
not lie in the instant matter and remedy lies
elsewhere and thus, it has been prayed that
instant Habeas Corpus writ petition is liable
to be dismissed on this ground alone.

4. In support of his contention, the
counsel for the opposite party nos.3 and 4
has placed reliance on the judgement and
order rendered in the case of Captain
Dushyant Somal vs Smt. Sushma Somal
and others; reported in 1981(2) SCC 277
and has referred para 3 of the judgement
which is extracted as under;

"3. There can be no question that
a Writ of Habeas Corpus is not to be issued
as a matter of course, particularly when the
writ is sought against a parent for the
custody of a child. Clear grounds must be
made out. Nor is a person to be punished
for contempt of Court for disobeying an
order
of
Court
except
when
the
disobedience
is
established
beyond
618 INDIAN LAW REPORTS ALLAHABAD SERIES
reasonable doubt, the standard of proof
being similar, even if not the same, as in a
criminal proceeding. Where the person
alleged to be in contempt is able to place
before the Court sufficient material to
conclude that it is impossible to obey the
order, the Court will not be justified in
punishing the alleged contemner. But all
this does not mean that a Writ of Habeas
Corpus cannot or will not be issued against
a parent who with impunity snatches away
a child from the lawful custody of the other
parent, to whom a Court has given such
custody. Nor does it mean that despite the
contumacious conduct of such a parent in
not producing the child even after a
direction to do so has been given to him, he
can
still
plead
justification
for
the
disobedience of the order by merely
persisting that he has not taken away the
child and contending that it is therefore,
impossible to obey the order. In the case
before us, the evidence of the mother and
the grand-mother of the child was not
subjected to any cross-examination; the
appellant-petitioner did not choose to go
into the witness box; he did not choose to
examine any witness on his behalf. The
evidence
of
the
grand-mother,
corroborated by the evidence of the mother,
stood unchallenged that the appellantpetitioner snatched away Sandeep when he
was waiting for a bus in the company of his
grand-mother. The High Court was quite
right in coming to the conclusion that he
appellant-petitioner had taken away the
child unlawfully from the custody of the
child's mother. The Writ, of Habeas Corpus
was, therefore, rightly issued. In the
circumstances, on the finding, impossibility
of obeying the order was not an excuse
which could be properly put forward."

5. Referring the aforesaid judgement,
he submits that Hon'ble Supreme Court has
held that the writ of Habeas Corpus is not
to be issued as a matter of course unless
clear grounds are made out.

6. On the other hand, learned counsel
appearing for the petitioners submits that
the petitioner no.2 is the father of the child
namely Deepak Kumar Tripathi and thus,
he is natural guardian and has preferential
right to claim the custody. He submits that
Section 6 of the ''Act 32 of 1956', envisages
the provisions that the natural guardian of a
Hindu minor, in case of boy is the father
and after him, the mother and thus the
father can not be deprived of the custody of
a minor child unless he is shown to be unfit
to be guardian. He added that admittedly
the child is in custody of opposite party
nos.3 and 4 and they are not the parents of
the child and thus onus goes upon them to
prove that the child is not illegally
detained. He added that, in fact, taking the
undue benefit of the situation that the
petitioner no.2 was very much involved in
looking after her wife in hospital, as she
sustained burn injuries due to an accident
and thus, they have taken away the child
without the cautious and proper permission
of petitioner no.2 and when the petitioner
no.2 asked the opposite party nos.3 and 4 to
give the custody of his son, he was denied,
and as such, this is clear cut a case of
illegal and improper detention by the
opposite party nos.3 and 4.

7.

Considering
the
aforesaid
arguments of learned counsel for the
parties, the question which has drawn
attention of this Court for consideration is
that whether the writ of Habeas Corpus
instituted
by
the
petitioner
no.2
is
maintainable? Law has been settled by the
Hon'ble Apex Court in the case of
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others; 2019
11 All. Vinayak Tripathi (Corpus) & Anr. Vs. State of U.P. & Ors.
619
(3) SCC (Criminal 433). Para 13 of the
judgement extracted as under;

"13. 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."

8. This question was also discussed in
British Law as it was placed before the
Queen Bench namely Queen v. Clarke
(1857) 7 EL & BL 186: 119, ER 1217
Lord Campbell, C.J., said at p. 193. The
Stalward British Judge while deciding the
issue has held that "But with respect to a
child under guardianship for nurture, the
child
is
supposed
to be
unlawfully
imprisoned when unlawfully detained from
the custody of the guardian: and when
delivered to him, the child is supposed to be
set a liberty."

9. Further in case of Manju Malini
Sheshachalam vs Vijay Thirugnanam
and others; 2018 SCC Online Kar 621,
the Hon'ble Apex Court has held in para 24
of the judgment which is read as follows;

"24. The moment respondents 1
and 2 refused to handover the custody of
minor Tanishka to the petitioner the
natural
and
legal
guardian,
the
continuation of her custody with them
becomes illegal detention. Such intentional
act on the part of respondent Nos.1 and 2
even amounts to the offence of kidnapping
punishable under Section 361 of IPC.
Therefore, there is no merit in the
contention that the writ petition is not
maintainable and respondent Nos.1 and 2
are in legal custody of baby Tanishka".

10. Undoubtedly, in case of dispute
regarding custody of a child, generally the
remedy lies under ''Act 32 of 1956' or The
Guardianships and Wards Act, 1890. It is
very much clear that the writ of habeas
corpus is issued in a case where the
detention is without any authority of law or
improper detention and thus the court
directs for producing the corpus. This can
be issued where the detention of minor
cannot be otherwise taken in the legal
custody.

11. It is an admitted fact that the child
is in custody of other than the parents.
Further the custody was taken under a
peculiar circumstances where the father of
minor child was looking after the mother of
the child, when she was ailing with burn
injuries in hospital and could not have
cautiously
and
improperly
decided
regarding the custody of the child. It seems
that taking advantage of the situation, the
opposite party Nos.3 and 4 had taken away
the child from the possession of the
petitioner no.2. It is an undisputed fact that
the opposite party nos.3 and 4 are not the
natural guardian and in view of the above
circumstances the custody of the child with
them can be termed as improper custody.

12. So far as the case of Captain
Dushyant Somal (supra) referred by
counsel for the opposite party nos.3 and 4
is concerned, there was dispute of custody
620 INDIAN LAW REPORTS ALLAHABAD SERIES
between father and the mother which are
covered under the definition of the Natural
guardians in the ''Act 32 of 1956' and the
factum is altogether different than the
present matter. This case has later been
considered in case of Tejaswani Gaud
(supra).

13. After the abovesaid discussions
and submissions, this court is of the
considered opinion that the instant
habeas corpus petition is maintainable
whereby the extraordinary remedy has
sought for custody of the child. Thus, the
preliminary objection taken by the
counsel for the respondent nos.3 and 4
finds no force and is hereby rejected.

14. The factual matrix of the case is,
that the marriage of the petitioner no.2 was
solemnized with the granddaughter of the
respondent no.3 and 4 on 11.03.2012. After
the marriage, the wife namely Soniya
Pandey @ Soniya and the petitioner no.2
was living very happily and a son namely
Vinayak Tripathi (corpus) was born from
their
wedlock
on
31.10.2013.
On
28.02.2014,
an
accident
took
place,
wherein the corpus as well as the wife of
the petitioner no.2 sustained burn injuries
and they were immediately taken to the
hospital for treatment by the petitioner no.2
and statement of the wife of petitioner no.2
was also recorded there. On 24th March,
2014, the wife of petitioner no.2 died. After
death of the wife, the every rites and ritual
were performed by the petitioner no.2 and,
thereafter, the respondent no.3 called upon
the petitioner no.2 on the pretext of the
illness of grand mother-in-law and when
petitioner no.2 reached over there, he was
surprised to see that she was not ill and,
thereafter on the next day, when he was
leaving the place, the respondent no.3
refused to give back the corpus to petitioner
no.2 stating therein that when he (petitioner
no.2) would re-marry then they will give
the corpus to him so that his son could be
better nurtured.

15.

In
September,
2014,
the
respondent no.3 proposed to the petitioner
No.2 to get marry with Aradhana Tripathi,
who was widow and mother of a child from
her first marriage and, as such, under the
supervision and presence of respondent
no.3 & 4 including certain respected
persons of the family, the marriage was
solemnized with Smt. Aradhana Tripathi on
4th March, 2015 and, thereafter, the
petitioner no.2 is residing at his place at
Padrauna,
District-Kushi
Nagar.
The
dispute arose when the respondent no.3 was
informed
that
the
second
wife
has
conceived pregnancy and, thereafter, the
respondent nos.3 and 4 started insisting the
petitioner no.2 to get abort the fetus and
threatened that if the petitioner no.2 will
not agree with the aforesaid desire of the
respondent nos.3 and 4, they will not return
back the corpus to him. On 31.10.2015, the
petitioner no.2 decided to celebrate the
birthday of the corpus and intimated to the
respondent nos.3 and 4 and requested to
come with the corpus at the place of Hotel
G-Star, Padrauna, but they refused to visit
their and further denied to give the custody
of the corpus to the petitioner no.2. He
again
requested
on
22.06.2016
for
performing
the
tonsure
(Mundan)
ceremony of corpus and asked him to bring
to the petitioner (corpus) but they again
refused and started threatening and, thus,
the wife of the petitioner no.2 informed the
higher Police Authorities at Kushi Nagar
on 14th July, 2016. All efforts were made
to get back the custody of the son of
petitioner no.2, but the respondent nos.3
and 4 refused to hand over the corpus to the
petitioner no.2.
11 All. Vinayak Tripathi (Corpus) & Anr. Vs. State of U.P. & Ors.
621

16. The petitioner no.2 moved an
application on 10th September, 2016 before
the respondent no.2 and requested for
restoring back the custody of the corpus to
him. On the aforesaid application, the
matter was referred before the Family
Conciliation Centre and parties were
required to present. The respondent no.3
was kept on avoiding to appear before the
Family Conciliation Centre and, ultimately,
he appeared on 06.11.2016 and refused to
give the corpus into the custody of the
petitioner no.2 and also denied to put his
signature on the report of the Family
Conciliation Center and, as such, the
Family Conciliation Center sent the report
to the effect that respondent no.3 is not
willing to hand over the corpus to the
petitioner. The report was sent to the
respondent no.1 on 06.11.2016 by the
Conciliation Center. On 11.11.2016, again
an application was moved before the higher
Authorities including the respondent no.1
making the prayer for getting back the
corpus in the custody of the petitioner no.2,
but that also remained in vain. Thereafter
the instant petition was filed before this
Court with the prayer, seeking direction to
respondent no.3 and 4 to produce the
corpus, namely, Vinayak Tripathi before
this Court and further prayer was made that
the custody of the corpus (petitioner no.1)
Vinayak Tripathi, be given to natural
guardian i.e. petitioner no.2.

17. Submissions of learned counsel
for the petitioners are that the death of
mother of the corpus was occurred due to
an accident, which is also evident from the
dying declaration. Since, the relations were
very much affectionate with the wife of
petitioner no.2 and, as such, he was in a
very measurable condition after her death
and, thereafter, on the desire of respondent
nos.3 and 4, he decided to get re-married
and, as such, the marriage has taken place.
Submission is that while taking the
decision of marriage, it was also in the
mind of the petitioner no.2 that nurturing of
his child (corpus) can best be done in case,
he re-marry, but after the second marriage
which was done on the desire of the
respondent nos.3 and 4 and was basically
organized by the respondent nos.3 and 4
and was solemanised in their presence, but
later on, they conspired and denied to give
the custody of the corpus to the petitioner
no.2.

18. He contended that later on, when
the second wife namely Aradhana Tripathi
conceived the pregnancy, they advised for
abortion and in case of disagreement, they
threatened not to give the custody of corpus
and the instant controversy cropped up due
to the same.

19. Applicant's counsel further argued
that as per the settled proposition of law,
the father is the natural guardian and, as
such, the custody of a son is his legal right.
This is not a case where there is any
criminal case against the petitioner or his
family members and further since the
petitioner no.2 (father) is alive and as such
he excludes the right of any other persons
with regard to the custody of corpus.

20. He next argued that the corpus
would get all the conducive and ordinary
comfort in the company of the petitioner
no.2 as he is headmaster in the primary
school and earned sufficient money so as to
take care the corpus and fulfill the need of
the same. Further family background of the
petitioner no.2 is sound and well mannered.
The whole family is educated and even the
eldest brother of petitioner no.2 is teacher
and elder brother is an advocate and
practicing in the High Court.
622 INDIAN LAW REPORTS ALLAHABAD SERIES

21. He further added that the instant
controversy arose because the wife of the
present petitioner namely Sonia Pandey
died due to burn accident and even after
making all effort to save her life and the
life of the corpus and even after providing
the best treatment, could not save the life of
his beloved wife and needless to say that,
all
the
expenses
incurred
upon
the
treatment was done by the applicant. He
next
submitted
that
conduct of
the
respondent no.3 always remain fraudulent
as at mediation centre, he refused to give
the custody of the corpus. Further, he
always filed forged papers with regard to
the study of corpus before the Court. It is
forged because when the applicant no.2
sought
information
under
Right
to
Information Act, it was found that the
admission of the corpus was terminated as
the record could not be produced by the
guardian. He has also drawn attention
towards page 32 of the rejoinder affidavit
dated 9th May, 2018 which is a letter of
head mistress of the Prathmik Vidyalay
Bahrampur First, District Mau address to
Sri Deepak Kumar Tripathi (petitioner
No.2).

22. He has also drawn attention of this
Court that it is not a case where any charge
of death of wife has ever been levelled
upon the petitioner no. 2. In support of his
contention, he attracted the attention at
annexure 1 page 17 which is dying
declaration of wife of the petitioner no.2.
He submits that dying declaration is itself
evident that the death occurred due to burn
accident and there was no any dispute
between the petitioner and his wife. He has
also indicated that so far as second
marriage is concerned, the same was
solemnized as arrange marriage on the
behest of respondent no.3 and marriage
certificate also reveals that the brother-inlaw has put in appearance on the certificate
of marriage of the petitioner with Aradhna
Tripathi. He also added that there are
specific evidence regarding threat to the
petitioner
no.2
for
termination
of
pregnancy of second wife as Audio Clip are
available which clearly shows that dispute
with regard to hand over the corpus arose
as second wife conceived pregnancy.

23. In support of his contention, the
counsel for the petitioners has placed
reliance on a case of Tejaswini Gaud and
others (supra) and submits that in an
identical situation the Hon'ble Apex Court
has directed the person, who were having
unlawful custody of the child, to the father,
who was working as Principal in an
educational institution. He has placed
reliance on para 31 and 34 of the
judgement which are quoted hereinunder;

"31. In the case at hand, the
father is the only natural guardian alive
and has neither abandoned nor neglected
the child. Only due to the peculiar
circumstances of the case, the child was
taken care of by the appellants. Therefore,
the cases cited by the appellants are
distinguishable on facts and cannot be
applied to deny the custody of the child to
the father.

34.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.
Merely because, the appellants being the
relatives took care of the child for some
time, they cannot retain the custody of the
11 All. Vinayak Tripathi (Corpus) & Anr. Vs. State of U.P. & Ors.
623
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."

24.

Referring
the
aforesaid
judgement, counsel for the petitioners
submits that the case of the present
petitioners are squarely covered with the
ratio of the aforesaid judgement. He added
that because of the special circumstances,
the child was with opposite party nos.3 and
4 and the petitioner no.2 neither abandoned
the child nor he has deprived the child of
his right, love and affection. He added that
now the petitioner no.2 has come out of
trauma and further there is female support
to take care of the child, and therefore, the
petitioner no.2 (father) cannot be denied,
the custody of the child.

25. He submits that case in hand is an
example where the father ever abandoned
the child or deprived the child with his love
and affection. It is because of the fact that
the first wife died and for a breathing
period, the child was with his grand
maternal uncle and merely because of the
fact that grand maternal uncle will take care
of the child for some time, he cannot deny
to handover the custody of the child to his
natural guardian.

26. He also added that the second wife
is there and as such the better care, love and
affection can be poured upon the child than
the maternal grand parents, who are of
considerable old age persons. He further
submits that petitioner no.2 is bonafide father
who can have all due care to the interest of
the corpus as he is headmaster and he has got
entered the name of the corpus in his service
records and also purchased the health
insurance policy, investment plans and made
nominee for 50 % of investment plan in the
name of corpus.

27. He submits that as per Section 6 of
''Act 32 of 1956', the father is a natural
guardian and whosoever is claiming the
custody of the child other than father has to
proof that the custody with him is not
improper. Section 6 of the Act is quoted
hereinabove;

6. Natural guardians of a Hindu
minor.--The natural guardian of a Hindu
minor, in respect of the minor's person as
well as in respect of the minor's property
(excluding his or her undivided interest in
joint family property), are--

(a) in the case of a boy or an
unmarried girl--the father, and after him, the
mother: provided that the custody of a minor
who has not completed the age of five years
shall ordinarily be with the mother;

(b) in case of an illegitimate boy or
an illegitimate unmarried girl--the mother,
and after her, the father;

(c) in the case of a married girl--
the husband: Provided that no person shall
be entitled to act as the natural guardian of a
minor under the provisions of this section--

(a) if he has ceased to be a Hindu,
or

(b) if he has completely and finally
renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--In this section, the expression
"father" and "mother" do not include a stepfather and a step-mother.

28. Referring the aforesaid, he
submits that intent of legislature is that the
first and foremost right is having custody of
a child is vest with the parents. This
624 INDIAN LAW REPORTS ALLAHABAD SERIES
provision has been envisaged in the
aforesaid act after due care and caution by
the legislature. This indicates that unless
there is such situation which negates the
welfare of the child in the custody of the
father, the father have all right of custody
of his son.

29. Thus, he submitted that the
present petitioner no.2 is entitled to have
the custody of his minor child and as a
result, a writ of habeas corpus may be
issued against the opposite party no.3 and 4
to provide the custody of minor child
(corpus petitioner no.1) to the natural
guardian
i.e.
petitioner
no.2
within
stipulated period of time as may be fixed
by this court.

30. Per contra, learned counsel
appearing for the State has opposed the
contention aforesaid and submits that the
situation is otherwise than it is narrated by
the present petitioner no.2 in the instant
petition. He submits that a suspicious fire
incident took place on 28.02.2014, wherein
the wife of the petitioner no.2 and child
(corpus) sustained severe burn injuries and
as a result the mother of the child died on
24.03.2014. He added that since then the
opposite party nos.3 and 4 started care of
the child in the hospital and thereafter he is
living with them. He submits that the
petitioner no.2 always mount pressure over
the opposite party nos.3 and 4 for providing
the corpus to him. He has drawn attention
towards the fact that the petitioner no.2 did
not visit the minor child for about three
years and thereafter he suddenly started
claiming the custody of the child. He
pressed his contention and submits that no
application
under
Section
12
for
registration or any kind of demand or
inquiry through any court of law has ever
been demanded by the petitioner no.2.
Further submits that the petitioner no.2 got
married with Aradhna Tiwary on 4th
March, 2015 just after death of his wife and
from wedlock of second wife, a child was
also born.

31. On the other hand, the contention
of learned counsel for the opposite party
nos.3 and 4 is that the child is living with
the grand maternal parents since he was
four months of age and father of the child
got re-married and having two children out
of aforesaid second marriage and if custody
of the child (corpus) is been given to the
petitioner no.2, the child has to face
anguish of step mother and naturally
welfare and interest of child would face
tremendous crisis.

32. Adding his arguments, he submits
that it is not claimed that the petitioner no.1
is not getting proper love and affection with
his grand maternal parents and it is also not
a case that he is not getting good education
and thus the welfare of child is taking care
of by them.

33. He added that the word ''welfare
or interest' of a child cannot be measured in
terms of money or physical comfort but it
also goes to affectionate tie with the
persons concern. He submits that the
petitioner no.1 (child) is living with the
grand maternal parents for long period of
time and as such his physical, mental and
emotional growth can very well nurtured
under the guardianship of opposite party
no.3 and 4. The conducive interest and
welfare of the minor is not a mechanical
parameter and further no law can decide it.
It is the situation of a child which can only
indicate regarding the welfare of the minor
child. He further added that the child is
well comfortable with the opposite party
nos.3 and 4 and further he do not want to
11 All. Vinayak Tripathi (Corpus) & Anr. Vs. State of U.P. & Ors.
625
go with the petitioner no.2 as the petitioner
no.2 and his newly wedded second wife
and
their
sibling
are
very
much
unacquainted with the petitioner no.1.

34. In support of his contention, the
counsel for the respondent nos.3 and 4 has
placed reliance on a case reported in (2008)
9 SCC 413, Nil Ratan Kundu and
another vs. Abhijit Kundu and submits
that the Apex Court has held that for
custody
of
a
child,
the
paramount
consideration is the welfare of the child.

35. He has further placed reliance on
a case reported in (2009) 1 SCC 42,
Gaurav Nagpal vs Sumedha Nagpal and
submitted that the welfare of the child is
not to be measured in terms of money
merely because of the physical comfort of
the child but tie of affection is be regarded.

36. Concluding his argument, he
submits that the child does not recognize
his father because of his negligence and
after the death of his mother, the child is
only the last living memory of her
daughter. Further submits that he is
studying in a reputed school and they are
well off and they are willing in future to
buy some property in the name of petitioner
no.1 and to make some fixed deposit
amounts if this Court such directs. Thus,
the submission is that the prayer of
petitioner no.2 for handing over the custody
of the child (alleged corpus) to him is not
justifiable and as such the instant habeas
corpus petition deserves to be dismissed.

37. Having heard learned counsel for
the parties and after perusal of material
placed on record, the issue before this
Court is that whether the custody of
petitioner no.1 (corpus) is illegal or
improper with opposite party nos.3 and 4.
The petitioner no.2 admittedly being the
father of the child has claimed the custody
of petitioner No.1 and has tried to
demonstrate that the child has illegally and
improperly been detained by opposite party
nos.3 and 4.

38. In the instant matter, due to an
accident, the child (petitioner no.1) and the
wife of petitioner no.2 got burn injuries and
both were admitted in the hospital. It is also
the fact that the petitioner no.2 was looking
after them in the hospital and has meeted
out all the expenses incurred upon the
medical treatment and in support thereof
has annexed certain bills and vouchers.
Under these circumstance, the grand
maternal parents had taken away the child
for short period of time for taking care of
but in the meantime, during the course of
medication, the mother of child, succumbed
due to injuries and naturally husband i.e.
petitioner no.2 was in tremendous pain and
thus for certain period of time, he could not
persuade the custody of the child. This does
not mean that he is not willing to look after
his child. There is also one of the fact that
opposite party nos.3 and 4 persuaded the
petitioner no.2 to get re-marry and on their
insistence the petitioner become ready for
remarriage and they were also remain
present at the time of marriage. It is a fact
that the petitioner no.2 was always in
contact with the opposite party no.3, 4 and
the corpus.

39. So far as the question with regard
to the better nurturing as well as caring is
concerned, the petitioner is well off, as he
is teacher and is getting handsome salary.
Further opposite party nos.3 and 4 could
not dispute the fact that the petitioner no.2
is a reputed person and his conduct and
behaviour is aboveboard in the society.
Admittedly, the petitioner no.2 is father of
626 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner no.1 (corpus) and as per
provisions of the ''Act 32 of 1956', the
father is natural guardian of a child. While
enactment of the aforesaid Act, the fact
regarding
conduciveness,
interest
and
welfare of the child must have been in the
mind of the legislature and therefore the
father was considered as Guardian and thus
if any thing is said contrary to the
aforesaid, the onus always lies upon the
person who is saying otherwise.

40. Further while considering the
contention of counsel for the opposite party
nos.3 and 4, in respect with the fact that the
child does not recognize his father, cannot
be a ground, not to hand over the custody
of such child to his father. This can also not
be a ground that the child is last living
memory of the daughter of grand maternal
parents as the parameter which has been
settled is that interest and welfare of the
child is a paramount consideration for
custody of a child. Further, this can also not
be a ground that the child goes to a reputed
school or any fixed deposit amount or any
property will be executed/ transferred in the
name of the minor child.

41. So far as the reliance was placed
by the opposite party nos.3 and 4 on the
cases of Nil Ratan Kundu and another v.
Abhijit Kundu (2008) 9 SCC 413 and
Gaurav Nagpal vs Sumedha Nagpal
reported in (2009) 1 SCC 42, those were
very well considered, in case of Tejaswini
Gaud (supra).

42. While going through the aforesaid
judgement, it reveals that the factum of
both the cases are altogether different than
the present case. Since the dispute of the
custody of the child was between the
parents i.e. father and mother in the
aforesaid matters, but so far as the present
matter is concerned, the custody of the
child is with the grand maternal parents and
that too on the ground that the child is last
living memory of their grand daughter,
which cannot be said to be a justifiable
ground. Further submission on behalf of the
respondent nos.3 and 4 that they will
manage and transfer certain property in the
name of the corpus (petitioner no.1), which
is as per settled law cannot be ground for
having custody of a minor child.

43. This Court has also noticed that
the grand maternal parents i.e. respondent
nos.3 and 4 are of considerable old age
persons and it would be very hard for them
to take care of a minor child, whereas
petitioner no.2 being a natural guardian and
having family assistance, can look after the
nurturing of the child in better way.

44. This Court is of considered
opinion that subject to the exceptions, in
the Indian Society, naturally a father or
mother would be more affectionate than
other persons including relatives and as
such while enactment of the ''Act 32 of
1956',
the
legislature
respecting
the
customs and natural phenomenon has made
provision that the father and after him,
mother is the Natural guardian of a minor
child. If there are situations that welfare of
child is not secured with the father as there
can be certain reasons, as for example, if
the father is drunker; he is involved in
immoral and unlawful activity; he is not
able to care himself or to the child the
situation would be different, but in the
instant matter the respondent nos.3 and 4
has failed to substantiate the aforesaid
reasons against the petitioner no.1.

45. In such situation, the onus goes
upon the person who is having a custody
not being a natural father to prove that
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
627
welfare of the child is not secured in the
custody of natural father. In the instant
matter, the respondent nos.3 and 4 has
failed to substantiate that the petitioner no.2
(father) is not a suitable guardian.

46. It has also been noticed that it is not
a case that the petitioner no.2 (father) did not
take all care and caution after the birth of the
corpus and it is due to misfortune, an accident
took place, whereafter naturally the petitioner
no.2 went into trauma but thereafter he is
continuously trying to get the custody of his
child.

47. It is decipherable from perusal of
the record appended with the writ petition
that the conduct and behaviour of the
respondent nos. 3 and 4, so far as access of
the child to his father is concerned, prima
facie seems to be unexpected. It is not
understandable that why the grand maternal
parents are so adamant, not to give the
custody of the child to his father as he does
not seem to be unfit to be guardian, thus this
is a best example of improper custody.

48. Resultantly, it is directed that the
respondent nos. 3 and 4 shall hand over the
custody of the child to the petitioner no.2, i.e.
Deepak Kumar Tripathi (father) on 20th
October, 2022 at his residence. Both the
parties shall act upon in the interest of the
child and and shall co-operate with each
other.

49. Further looking into the well
being of the child and making the child
comfortable, the respondent nos.3 and 4
shall have access to the child for a period of
four months, at the residence of the
petitioner no.2, in between 10 A.M. to 5
P.M. on every Sunday of each month and
the
petitioner
no.2
shall
make
it
comfortable.

50. Accordingly, the Habeas Corpus
writ petition is allowed.

51. No order as to costs.
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(2022) 11 ILRA 627
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.11.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Transfer Application (Civil) No.