# Viraj Bhati & Anr v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1032
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Habeas Corpus Writ Petition No. 328 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/viraj-bhati-anr-v-state-of-u-p-ors-49764
- **Pages:** 10

## Headnote

Civil Law - Constitution of India.1950 -
Article
226,
-
Criminal
Procedure
Code,1973 - Section - 491 - Indian Penal
Code, 1860 - Sections 307, 323, 498(A),
504
&
506
-
Hindu
Minority
&
Guardianship Act, 1956 - Sections 6 &
6(A) - Dowry Prohibition Act,1961 -
Sections 3 & 4 - Writ of Habeas Corpus -
against illegal custody of minor child - after
death of father of corpus, he was in custody of
his grandmother and uncle - court finds that,
the instant habeas corpus petition filed by the
natural guardian mother on behalf of the corpus
as well as on her own behalf - Whether petition
is maintainable - Held, A mother is always
mother whether earning sufficiently or not and it
cannot be presumed that after termination of
her employment in Ferns Petals, she will not be
able to nourish or take care of needs of the
child - Mother has superior right of custody over
her son - she cannot be denied the custody of
her child being her natural guardian under law
and privacy over custody of child has been
claimed by her rightly above any other person in
absence of his father - Petition allowed -
directions issued accordingly.
 (Para - 12, 13, 14)

Writ Petition Allowed. (E-11)

List of Cases cited:

## Text

1032 INDIAN LAW REPORTS ALLAHABAD SERIES
well as to Ms. Mahima Jain, Judicial
Officer/Civil Judge (J.D.)/F.T.C.-2, Gautam
Budh Nagar by the Registrar (Compliance)
of this Court forthwith.

29. Let the copy of this order be
circulated to every sessions division by
Registrar General of this Court.
----------
(2023) 3 ILRA 1032
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 328 of 2022

Viraj Bhati & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajiv Kumar Singh

Counsel for the Respondents:
G.A., Sri Om Prakash Rai, Sri Ashish Rai

Civil Law - Constitution of India.1950 -
Article
226,
-
Criminal
Procedure
Code,1973 - Section - 491 - Indian Penal
Code, 1860 - Sections 307, 323, 498(A),
504
&
506
-
Hindu
Minority
&
Guardianship Act, 1956 - Sections 6 &
6(A) - Dowry Prohibition Act,1961 -
Sections 3 & 4 - Writ of Habeas Corpus -
against illegal custody of minor child - after
death of father of corpus, he was in custody of
his grandmother and uncle - court finds that,
the instant habeas corpus petition filed by the
natural guardian mother on behalf of the corpus
as well as on her own behalf - Whether petition
is maintainable - Held, A mother is always
mother whether earning sufficiently or not and it
cannot be presumed that after termination of
her employment in Ferns Petals, she will not be
able to nourish or take care of needs of the
child - Mother has superior right of custody over
her son - she cannot be denied the custody of
her child being her natural guardian under law
and privacy over custody of child has been
claimed by her rightly above any other person in
absence of his father - Petition allowed -
directions issued accordingly.
 (Para - 12, 13, 14)

Writ Petition Allowed. (E-11)

List of Cases cited:

1. Master Advait Sharma Vs St. of U.P. & ors.,
2021 (0) Supreme (All) 216,

2. Perry Kansagra Vs Smriti Madan Kansagra,
(2019) 20 SCC 753,

3. Ashish Ranjan Vs Anupma Tandon & anr.,
(2010) 14 SCC 274,

4. Githa Hariharan Vs Reserve Bank of India,
AIR 1999 SC 1149,

5. Rosy Jacob Vs Jacob Chakramakkal, AIR 1973
SC 2090,

6. Tejaswini Gaud & ors. v. Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42.

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Hear Sri Rajeev Kumar Singh,
learned counsel for the petitioners, Sri O.P.
Rai and Ashish Rai, learned counsel for the
respondent no. 3 and learned A.G.A. for the
state and perused the material on record.

2. Instant habeas corpus petition has
been filed by the petitioner no. 2 Smt. Anu
Kumari on behalf of the corpus Viraj Bhati
(minor) as well as on her own behalf and
has sought following relief in the petition:-

"(i) issue a writ of habeas corpus,
directing the respondent no. 3 to produce
the corpus/petitioner no. 1/minor boy/son
of petitioner no. 2 before this Hon'ble
3 All. Viraj Bhati & Anr. Vs. State of U.P. & Ors.
1033
Court who is illegally detained by his
grandmother/respondent no. 3 in the
parental house of his late father situated at
B-16, C-2, Everest Apartment, Shalimar
Garden, Extension II, Sahibabad and
District-Ghaziabad against the wish by the
petitioner no. 1 to petitioner no. 2 on video
call happened on 22.4.2022.

(ii) Issue any other suitable order or
direction as this Hon'ble Court may deem
fit and proper in the circumstances of the
case for producing the corpus.

(iii) Award the cost of the habeas
corpus petition to the petitioners."

3. Learned counsel for the petitioners
based his submissions on averments made in
writ petition and submitted that petitioner no.
1 is minor son of petitioner no. 2, born out of
wedlock of petitioner no. 2 and her husband
Vivek Bhati. Their marriage was solemnized
on 7.3.2014 with the consent of parties as
well as with consent of their family members
in accordance with Hindu rites and rituals.
Petitioner no. 2 resided with her husband in a
rented house at Krishna Nagar East, Delhi.
Petitioner no. 2 is presently residing in
District Bulandshahar along with her father.
Birthday of the corpus was celebrated by
petitioner no. 2 and respondent no. 3,
however, the child is presently detained by
respondent no. 3 in parental house of corpus.
Father-in-law of the petitioner no. 2 namely
Satpal Bhati was a leading Advocate at
District Ghaziabad and husband of petitioner
no. 2 Vivek Bhati and his younger brother
Mr. Varun Bhati were also Advocates,
however, father-in-law of petitioner no. 2
died untimely, thus entire family became
shocked. Husband of petitioner no. 2 started
consuming liquor frequently and this was
opposed by petitioner no. 2. He also used to
physically assault her and used to make
demand of dowry as such she lodged an
F.I.R. on 30.3.2021 against her husband and
his family members under Sections 498A,
323, 504, 506, 307 IPC and 3⁄4 D.P. Act,
which is registered as case crime no. 242 of
2021 at P.S. Kotwali Shahar, District
Bulandshahar. Unfortunately husband of
petitioner no. 2 died in a road accident on
9.4.2021. Petitioner no. 2 became widow due
to death of her husband. She is graduate in
commerce and started working as Sales
Executive in a Company named as Ferns
Petals to meet out household expenses and
for the welfare of her small child. For
enhancing her monthly income, petitioner no.
2 also started online sale of household goods
by taking assistance of her retired father, who
was in Army. Petitioner no. 2 is apprehending
threat to her life from her mother-in-law. She
also apprehends threat to life of her minor
son, who is co-sharer of landed property of
respondent no. 3 and her son Varun Bhati,
who is an Advocate. Respondent no. 3 is
infirm and old aged lady in whose custody
corpus is presently lying due to death of her
father-in-law and husband, and family
outcome of her in-laws has deteriorated. It is
further submitted that petitioner no. 2 is
concerned about future and education of her
minor son, who is illegally detained by
respondent no. 3 and her son Varun Bhati as
her son Varun bhati is an Advocate in
Ghaziabad. She is fearful of approaching
local Court for custody of minor child due to
attitude of local lawyers in favour of her
brother-in-law and son of respondent no. 3,
therefore it is prayed that child may be
directed to be produced before the Court and
necessary order may be passed regarding
transfer of custody of corpus in favour of
petitioner no. 2, who is her natural guardian.

4. Per contra, learned A.G.A. as well
as
learned
counsel
for
the
private
respondents objected the prayer made by
the petitioner no. 2 in writ petition. It is
further argued that actual date of birth of
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner no. 1 is 15.3.2015 and not
15.3.2016 as stated in writ petition. This
fact can be verified from birth certificate
issued from Nagar Nigam Ghaziabad and
Ambey Hospital, a copy of birth certificate
has been filed as Annexure CA-2 with
counter affidavit. Custody of child was
initially with his late father and after his death,
it passes on respondent no. 3 (grandmother of
corpus) and his uncle Varun Bhati. Petitioner
no. 2 did not come to take forward the custody
of corpus at the time of death of her husband
and at that time respondent no. 3 and her son
were only person who looked after petitioner
no. 1. In fact she was never interested in
custody of her child for a period of almost two
years and the child is lying along with his
grandmother and uncle. As the child is lying in
custody of his grandmother and uncle, he
cannot be said to be lying in illegal custody
and present habeas corpus is not maintainable
as such and appropriate remedy is available to
the petitioner no. 2 to approach the statutory
forum available under law seeking custody of
the child. The petitioner no. 2 is presently not
employed in Company named as Ferns Petals
as she was terminated on 30.8.2021 and a
certificate has been issued in this regard by Sri
Gaurav Jain, partner of said firm, which is
filed along with counter affidavit. The child is
being
imparted
quality
education
by
respondent no. 3 and his uncle Varun Bhati
and is obtaining outstanding colour in his
studies. Uncle of child Varun Bhati earns
sufficiently and he is an Income-tax payee and
is able to meet out academic and other
expenses of child. Petitioner no. 1 is not
willing to reside with his mother and is happily
residing with his grandmother and uncle. He is
aged around 7 years and is deeply attached
with his grandmother and uncle.

5. Learned counsel for the petitioner
placed reliance on a case decided by this
Court in Master Advait Sharma Vs. State
of U.P. and five others, 2021 0 Supreme
(All) 216, wherein matter of custody of
minor child between his parents was
occupied the centre stage of controversy.
The child's misfortune, circumstanced as he
is, is the fallout of an estrangement of his
parents, who did not seem to have got
along in matrimony. Both were highly
educated and employed in a reputed
companies. Both sides levelled a number of
allegations against each other in their
pleadings which were impleaded with
virtues
claimed
for
themselves
and
demonizing the other party including inlaws on both sides. This Court considered
the provisions of Section 6-a of the Hindu
Minority and Guardianship Act, 1956,
wherein it is provided that natural guardian
of a Hindu, minor, in respect of minor's
persons as well as in respect of minor's
property (excluding his or her undivided
interest in combined 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. This
Court observed in paragraph nos. 44, 49, 51
as under:-

44. The provision lays down the Rule
that notwithstanding the father being the
natural guardian, the custody of a minor,
who has not completed the age of five
years, ought ordinarily be with the mother.
This rule echoes experience of mankind
that mothers are best suited to take care of
very young children. Since, however,
welfare of a child is of paramount
consideration, the proviso to Section 6(a) of
the Act of 1956, makes a remarkable
prescription
by
employing
the
word
''ordinarily' to qualify the rule. The word
''ordinarily' gives full play to the Court's
assessment in a given case to find out
3 All. Viraj Bhati & Anr. Vs. State of U.P. & Ors.
1035
where the welfare of the minor would be
best secured. It must be remarked here
before moving ahead that even the natural
guardianship of a minor under Section 6(a)
of the Act of 1956 is now no longer
preferentially held by the father. The
mother and the father are at par as natural
guardians of the minor, in view of the
holding of the Supreme Court in Githa
Hariharan (Ms) and another vs. Reserve
Bank of India and another, (1999) 2 SCC
228. The dispute here is about custody and
not about guardianship, which is hardly
disputed for both parents.

49. In the opinion of this Court, there
is a strong presumption about a child's
welfare to be better secured in the mother's
hand, which can be dispelled only by
cogent and glaring evidence about the
mother's lack of fitness to discharge her
maternal obligations, as already remarked.
There is no such circumstance or evidence
brought to this Court's notice that may
render Preeti unfit to take care of her minor
son. This Court is fortified in the view that
we take by the decision of the Supreme
Court in Roxann Sharma vs. Arun Sharma,
(2015) 8 SCC 318, where it has been held:

"13. The HMG Act postulates that the
custody of an infant or a tender aged child
should be given to his/her mother unless
the father discloses cogent reasons that are
indicative of and presage the likelihood of
the welfare and interest of the child being
undermined or jeopardised if the custody is
retained by the mother. Section 6(a) of the
HMG Act, therefore, preserves the right of
the father to be the guardian of the property
of the minor child but not the guardian of
his person whilst the child is less than five
years old. It carves out the exception of
interim custody, in contradistinction of
guardianship, and then specifies that
custody should be given to the mother so
long as the child is below five years in age.
We must immediately clarify that this
section or for that matter any other
provision including those contained in the
G and W Act, does not disqualify the
mother to custody of the child even after
the latter's crossing the age of five years."

51. I had occasion to consider the
question about the right of a mother to the
custody of her young child, particularly, in
the context of Section 6(a) of the Act of
1956 in Master Atharva (Minor) and
another vs. State of Uttar Pradesh and 7
others, 2020 (143) ALR 332, where it was
held:

"9. A reading of the terms of the
proviso to Section shows that quite apart
from the question of natural guardianship,
the custody of a minor, who has not
completed the age of five years, is to be
ordinarily with the mother. The only niche,
therefore, so far as the statue goes, is the
word "ordinary". The word "ordinary"
signifies that as a matter of rule, children
up to the age of five years are to be left with
their mothers, but there could be exceptions
as well. Those exceptions could be where
the mother is demonstrably leading an
immoral life or may have remarried, where
in her new home, the child from her earlier
alliance has no place, or where the mother
is convicted of a heinous offence etc. In the
present case, no such circumstance has
been indicated, much less pleaded and
proved so as to place the mother in that
exceptional category where she may be
deprived of the custody of her young child,
who is still well below the age of five years.

10. It must also be remarked that even
after the child turns five, it is not that the
mother becomes disentitled. She still would
be the best person to tender a child and
groom
him
into
an
adult.
In
this
connection, reference may be made to the
decision of the Supreme Court in Roxann
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharma v. Arun Sharma, (2015) 8 SCC 318,
where it has been held:

"13. The HMG Act postulates that the
custody of an infant or a tender aged child
should be given to his/her mother unless
the father discloses cogent reasons that are
indicative of and presage the likelihood of
the welfare and interest of the child being
undermined or jeopardised if the custody is
retained by the mother. Section 6(a) of the
HMG Act, therefore, preserves the right of
the father to be the guardian of the property
of the minor child but not the guardian of
his person whilst the child is less than five
years old. It carves out the exception of
interim custody, in contradistinction of
guardianship, and then specifies that
custody should be given to the mother so
long as the child is below five years in age.
We must immediately clarify that this
section or for that matter any other
provision including those contained in the
G and W Act, does not disqualify the
mother to custody of the child even after
the latter's crossing the age of five years."

6. In Master Advait (supra), this Court
ordered that Master Advait Sharma shall be
delivered by his father into custody of his
mother within a week of pronouncement of
this judgment, failing which C.J.M.,
Ghaziabad shall cause the minor to be
delivered into custody of his mother, Smt.
Preeti Rai at Ghaziabad through agency of
the police. However the father will have
visitation rights of the child being one of
his natural guardian and corresponding
obligations will lie upon the mother to
facilitate the visitation.

7. Hon'ble Apex Court in the case of
Perry
Kansagra
Vs.
Smriti
Madan
Kansagra, (2019) 20 SCC 753 and Ashish
Ranjan Vs. Anupma Tandon and Anr.,
(2010) 14 SCC 274 held that in case of
custody of child paramount consideration
remains welfare and interest of the child.

8. In the present case, the dispute
regarding custody of minor is lying
between his mother on one hand and his
grand mother and uncle on the other hand.
The child is lying in custody of his
grandmother and the petition has been
approached by his uncle Varun Bhati.
Father of corpus died on 8.4.2021. This is a
case of respondent no. 3 that after death of
her person Vivek Bhati, custody of
petitioner no. 1 passage on her being his
grandmother and also to his uncle Varun
Bhati and they are well equipped to take
care of all essential needs of the child
whereas petitioner no. 2 claims custody of
child being his mother. From perusal of
record, it appears that her private job was
for stipulated period and presently she is
not in the employment of G.H. Enterprises
(Ferns Petals). She has stated that she earns
sufficiently by engaging herself in other
part time jobs. The corpus (minor) is aged
about six to seven years as per his date of
birth recorded as 15.3.2015. Section 6 of
the Hindu Minority and Guardianship Act
provides that natural guardian of a Hindu
minor, in respect of minor's person as well
as in respect of minor's property are-

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

(b)...

(c)...

Explanation:- In this Section the
expression "father" and "mother" do not
include a step-father and step-mother.

9. Hon'ble Apex Court in Githa
Hariharan v. Reserve Bank of India, AIR
1999 SC 1149, observed that in the phrase "
3 All. Viraj Bhati & Anr. Vs. State of U.P. & Ors.
1037
the father" and after him, " the mother", the
word' after need not necessarily mean after
the lifetime of father. In the context in
which it appears in Section 6(a) it means
''in the absence of', the word ''absence'
therein referring to the father's absence
from the care of minor's property or person
for any reason whatsoever. If the father is
wholly indifferent to the matters of minor
or if by virtue of mutual understanding
between the parents, the mother is put
exclusively in charge of the minor or if the
father is physically unable to take care of
minor for any reason whatsoever, the father
can be considered to be absent and mother
being a recognized natural guardian can act
validly on behalf of the minor as the
guardian.

10. In the case of Rosy Jacob v.
Jacob Chakramakkal, AIR 1973 SC 2090,
Hon'ble Apex Court held that controlling
consideration governing the custody of
children is the welfare of children and not
the right of the parents.

11.

Learned
counsel
for
the
petitioners placed reliance on judgement of
Hon'ble Apex Court in Tejaswini Gaud and
others vs. Shekhar Jagdish Prasad Tewari
and others reported in (2019) 7 SCC 42,
wherein, also matter of custody of minor
child between the father of minor girl and
his sister-in-law (sister of his deceased
wife) was involved; High Court of Bombay
held that respondent no. 1 father only
surviving parent of child, is entitled to the
custody of child and the child needs love,
care and affection of father, taking into
account
that
respondent
no.
1
was
hospitalized for serious ailment and in
those circumstances, the appellant, his
brother and sister-in-law have looked after
child and in the interest of justice it is just
and proper that custody of child is handed
over back to the first respondent (father of
the child). However, the High Court
observed that efforts put in hands of the
appellant, in taking care of child has to be
recognized and so High Court granted
appellant no. 2 and 3 access to the child.
The above order of the High court was
challenged before the Apex Court by
private respondent in whose custody child
was lying but same was disposed by the
Apex Court and impugned judgement of
High Court was affirmed subject to certain
conditions and observations. However,
Hon'ble Apex Court had observed in
paragraph Nos. 13, 14, 18, 19, 20, 22, 25,
52, which are 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 3
Gohar Begum v. Suggi @ Nazma Begam
and others AIR 1960 SC 93 4 Smt. Manju
Malini
Sheshachalam
D/o
Mr.
R.
Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online
Kar 621 law, is not his legal or natural
guardian, in appropriate cases, the writ
court has jurisdiction.
14. In Gohar Begum3 where the mother
had, under the personal law, the legal right
to the custody of her illegitimate minor
child, the writ was issued. In Gohar
Begum3, the Supreme Court dealt with a
petition for habeas corpus for recovery of
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
an illegitimate female child. Gohar alleged
that Kaniz Begum, Gohar's mother's sister
was allegedly detaining Gohar's infant
female child illegally. The Supreme Court
took note of the position under the
Mohammedan Law that the mother of an
illegitimate female child is entitled to its
custody and refusal to restore the custody
of the child to the mother would result in
illegal custody of the child. The Supreme
Court held that Kaniz having no legal right
to the custody of the child and her refusal
to make over the child to the mother
resulted in an illegal detention of the child
within the meaning of Section 491 Cr.P.C.
of the old Code. The Supreme Court held
that the fact that Gohar had a right under
the Guardians and Wards Act is no
justification for denying her right under
Section 491 Cr.P.C. The Supreme Court
observed that Gohar Begum, being the
natural guardian, is entitled to maintain the
writ petition and held as under:-

"7. On these undisputed facts the
position in law is perfectly clear. Under the
Mohammedan law which applies to this
case, the appellant is entitled to the custody
of Anjum who is her illegitimate daughter,
no matter who the father of Anjum is. The
respondent has no legal right whatsoever to
the custody of the child. Her refusal to
make over the child to the appellant
therefore resulted in an illegal detention of
the child within the meaning of Section
491. This position is clearly recognised in
the English cases concerning writs of
habeas corpus for the production of infants.
In Queen v. Clarke (1857) 7 EL & BL 186:
119, ER 1217 Lord Campbell, C.J., said at
p. 193:

"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 at liberty." The
courts in our country have consistently
taken the same view. For this purpose the
Indian cases hereinafter cited may be
referred to. The terms of Section 491 would
clearly be applicable to the case and the
appellant entitled to the order she asked.
8. We therefore think that the learned
Judges of the High Court were clearly
wrong in their view that the child Anjum
was not being illegally or improperly
detained. The learned Judges have not
given any reason in support of their view
and we are clear in our mind that view is
unsustainable in law. ........

10. We further see no reason why the
appellant should have been asked to
proceed under the Guardian and Wards Act
for recovering the custody of the child. She
had of course the right to do so. But she
had also a clear right to an order for the
custody of the child under Section 491 of
the Code. The fact that she had a right
under the Guardians and Wards Act is no
justification for denying her the right under
Section 491. That is well established as will
appear from the cases hereinafter cited."
(Underlining added)

18. 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
3 All. Viraj Bhati & Anr. Vs. State of U.P. & Ors.
1039
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.

19. 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.

20. 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 11⁄2 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.

22.
After
referring
to
various
judgments and considering the principles
for issuance of writ of habeas corpus
concerning the minor child brought to
India in violation of the order of the
foreign court, in Nithya Anand7, it was
held as under:-

6 Ruchi Majoo v. Sanjeev Majoo
(2011) 6 SCC 479 7 Nithya Anand
Raghavan v. State (NCT of Delhi) (2017) 8
SCC 454 "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."
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Welfare of the minor child is the
paramount consideration:- The court while
deciding the child custody cases is not
bound by the mere legal right of the parent
or guardian. Though the provisions of the
special statutes govern the rights of the
parents or guardians, but the welfare of the
minor is the supreme consideration in cases
concerning custody of the minor child. The
paramount consideration for the court
ought to be child interest and welfare of the
child.

52. In our judgment, the law relating
to custody of a child is fairly well settled
and it is this: in deciding a difficult and
complex question as to the custody of a
minor, a court of law should keep in mind
the relevant statutes and the rights flowing
therefrom. But such cases cannot be
decided
solely
by
interpreting
legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict rules
of evidence or procedure nor by precedents.
In selecting proper guardian of a minor, the
paramount consideration should be the
welfare and well-being of the child. In
selecting a guardian, the court is exercising
parens patriae jurisdiction and is expected,
nay bound, to give due weight to a child's
ordinary comfort, contentment, health,
education, intellectual development and
favourable surroundings. But over and
above physical comforts, moral and ethical
values cannot be ignored. They are equally,
or we may say, even more important,
essential and indispensable considerations.
If the minor is old enough to form an
intelligent preference or judgment, the
court must consider such preference as
well, though the final decision should rest
with the court as to what is conducive to
the welfare of the minor."

12. On the basis of observations of
Hon'ble Apex Court, which has binding
force and facts and circumstances of the
case, I am of the considered opinion that
above judgment of Hon'ble Apex Court
may act as a guiding force for this Court in
present case and no pedantic approach can
be taken by the court while deciding the
custody of the child. In present case
petitioner no. 2, who is mother of child, has
neither abandoned nor deprived him of his
right to maternal love and affection. She is
natural guardian of the child due to death of
his father. Respondent no. 3 and her
surviving son Varun Bhati undoubtedly
have taken care of the child since death of
his father and fact of their care and
concerned of the child cannot be lost side.

13. However, only due to this fact that
the mother, who is petitioner no. 2, cannot
be denied the custody of her child being her
natural guardian under law and privacy
over custody of child has been claimed by
her rightly above any other person in
absence of his father. A mother is always
mother whether earning sufficiently or not
and it cannot be presumed that after
termination of her employment in Ferns
Petals, she will not be able to nourish and
take care of needs of the child. She has
superior right of custody over her son than
his grandmother and uncle in absence of
anything adverse on the part of the mother
except the fact that she is not employed in
any regular job. However, till the child,
who is stated to be between six to seven
years of age at present, gets acquainted
with everything and will be in company
of his mother i.e. petitioner no. 2,
respondent no. 3 and her son Varun Bhati
shall have access to him in the form of
visitation rights for a period of one year
of this order.
3 All. Babu Khan & Ors. Vs. Rajendra Pratap
1041

14. Keeping in view the fact that
petitioner no. 2 is resident of Bulandshahar
and the respondent no. 3 and her son are
settled in Ghaziabad, it is directed that
respondent no. 3 and her surviving son
(uncle of the child), will have visitation
rights to the corpus Viraj Bhati (petitioner
no. 1) for a period of one year at the place
of petitioner no. 2, twice in a month on a
Sunday between 11:00 am to 5:00 pm,
subject to prior arrangement made with
petitioner no. 2 telephonically. Petitioner
no. 2 will facilitate the meeting between the
child and his grandmother and uncle
accordingly and will not create any
impediment
therein.
Accordingly
this
Habeas Corpus Writ Petition is allowed.

15. Therefore, it is directed that
respondent no. 3 shall handover custody of
petitioner no. 1 to petitioner no. 2 (mother
of the corpus) within 30 days from the date
of production of a certified copy of this
order, at the residence of petitioner no. 2.
Keeping in view the interest of child, both
the parties shall cooperate with each other
to ensure direction of this Court.

16. It is further directed that in case
respondent no. 3 or her family members
adopt any procrastinating approach in
handing over custody of child to petitioner
no. 2 (mother) or refused to transfer the
custody of child, matter would be reported
by petitioner no. 2 to S.S.P., Ghaziabad and
C.J.M., Ghaziabad, who shall ensure
compliance of this order and shall ensure
the custody of child to petitioner no. 2 on
production of a copy of this order before
them.
----------
(2023) 3 ILRA 1041
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Second Appeal No. 947 of 1995

Babu Khan & Ors. ...Appellants
Versus
Rajendra Pratap ...Respondent

Counsel for the Appellants:
Sri S.N. Srivastava, Sri Naresh Chandra Tipathi

Counsel for the Respondent:
Sri J.H. Khan, Sri W.H. Khan, Sri Gulrez Khan

Civil Law - Civil Procedure Code, 1908 -
Section 100, - U.P. Zamindari Abolition
and Land Reforms Act, 1950 - Sections
189(C), 193, 209, 210, 229-B & 341 -
Guardianship and Wards Act, 1890 -
Sections 4(2), 4(3) & 30 - Limitation Act,
1963 - Sections 6 & 7, Entry - 65 of
Schedule - 1 - Second Appeal arising out of a
Suit - suit property - owner of suit property in
question died - leaving behind his widow and his
five sons - widow also died - eldest of sibling
took care of the interests of his brothers who
were all minors at that time executed a sale
deed of suit property in year 1977 being defacto guardian on behalf of all the minor also in
favour of plaintiff/respondent - name of plaintiffrespondent was duly mutated in year 1982 in
the revenue records and no objections against
same were filed by defendant-appellants first
set, even after attaining majority - On becoming
major, defendant-appellant No. 1 and 2 filed a
suit under Section 229-B of UP Act, 1950,
challenging sale deed dated - during pendency
of said suit, defendant-appellant first set
executed another sale deed in year 1988, for
sale of their share in property in question, in
favour of second set of defendant-appellants -
being non-prosecution, Suit u/s 229-B was
dismissed - plaintiff/respondent's suit was
decreed - first Appeal dismissed - court finds
that, First Appellate Court have given a
categorical
finding
that
plaintiff-purchaserrespondent been in possession of property in
dispute and ex-parte injunction granted plaintiff
initially by order continued throughout suit -
Plaintiff/respondents-purchaser were throughout