# Yajur Verma @ Jai Verma v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-01
- **Case number:** Habeas Corpus Writ Petition No. 831 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yajur-verma-jai-verma-v-state-of-u-p-ors-51225
- **Pages:** 7

## Headnote

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(father) sought habeas corpus for custody of 4year-old son from mother (respondent No. 4),
alleging illegal detention post-separation. Court
held: (1) Habeas corpus maintainable only if
custody unlawful; paramount consideration is
child's welfare, not parental rights (Syed
Saleemuddin Vs Rukhsana, (2001) 5 SCC 247).
(2) For child below 5 years, mother preferred as
natural guardian under Section 6(a) of Hindu
Minority and Guardianship Act; father's claim
unsubstantiated (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (3) No
evidence of unlawful detention or mother's
incapacity; child's stable environment with
mother and grandparents, including schooling in
Lucknow, prioritized (Meenakshi Vs St. of U.P.,
2020 12 ADJ 254). (4) Prior orders granted
petitioner
visitation
rights
for
elder
son,
extendable to younger; no justification for
disrupting child's current custody (Tejaswini
Gaud Vs Shekhar Jagdish Prasad Tewari, (2019)
7 SCC 42). (5) Petitioner to seek formal custody
under Guardians and Wards Act; writ jurisdiction
not for routine disputes. Petition dismissed;
mother retains custody. (Paras 2-19)

Writ Petition Dismissed.

Case Law Cited:

## Text

2 All. Yajur Verma @ Jai Verma Vs. State of U.P. & Ors.
107
set-aside. Since the confirmation order
dated 05.06.2023 by which the detention
order dated 6.5.2023 has been set-aside, we
are of the view that the order dated
06.05.2023 also goes as it has outlived its
life.

10. We, therefore, direct that the
petitioner, Niyaz Ansari, (Detenue) be set at
liberty, unless he is required in any other
case.
----------
(2024) 2 ILRA 107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Habeas Corpus Writ Petition No. 831 of 2023

Yajur Verma @ Jai Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mahesh Narain Singh, Sri M.N. Singh,
Sri Anoop Trivedi (Sr. Advocate)

Counsel for the Respondents:
G.A., Sri Sarvesh

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(father) sought habeas corpus for custody of 4year-old son from mother (respondent No. 4),
alleging illegal detention post-separation. Court
held: (1) Habeas corpus maintainable only if
custody unlawful; paramount consideration is
child's welfare, not parental rights (Syed
Saleemuddin Vs Rukhsana, (2001) 5 SCC 247).
(2) For child below 5 years, mother preferred as
natural guardian under Section 6(a) of Hindu
Minority and Guardianship Act; father's claim
unsubstantiated (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (3) No
evidence of unlawful detention or mother's
incapacity; child's stable environment with
mother and grandparents, including schooling in
Lucknow, prioritized (Meenakshi Vs St. of U.P.,
2020 12 ADJ 254). (4) Prior orders granted
petitioner
visitation
rights
for
elder
son,
extendable to younger; no justification for
disrupting child's current custody (Tejaswini
Gaud Vs Shekhar Jagdish Prasad Tewari, (2019)
7 SCC 42). (5) Petitioner to seek formal custody
under Guardians and Wards Act; writ jurisdiction
not for routine disputes. Petition dismissed;
mother retains custody. (Paras 2-19)

Writ Petition Dismissed.

Case Law Cited:

1. Syed Saleemuddin Vs Rukhsana, (2001) 5
SCC 247 (Para 10)

2. Nithya Anand Raghavan Vs St. (NCT of
Delhi), (2017) 8 SCC 454 (Para 11)

3. Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42 (Para 13)

4.
Kanu
Sanyal
Vs
District
Magistrate,
Darjeeling, (1973) 2 SCC 674 (Para 11)

5. Elizabeth Dinshaw Vs Arvand M. Dinshaw,
(1987) 1 SCC 42 (Para 11)

6. Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112 (Para 11)

7. Meenakshi Vs St. of U.P., 2020 12 ADJ 254
(Para 12)

8. Githa Hariharan Vs Reserve Bank of India,
(1999) 2 SCC 228 (Para 14)

(Delivered by Hon'ble Mrs.
Jyotsna Sharma, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri Mahesh
Narain Singh, learned counsel for the
petitioner, Sri Sarvesh, learned counsel for
108 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.4 and Mohd. Shoeb Khan,
learned A.G.A. for the State.

2. This habeas corpus writ petition
has been filed on behalf of minor son Yajur
Verma @Jai Verma aged about four years
through his father against Smt. Ashi Verma
@ Hani Verma, mother of the corpus, the
respondent no.4 and others.

3. The submissions of the petitioner in
brief are as below-:

i. The marriage of Gaurav Verma,
the petitioner with respondent no.4 was
solemnized in 2010. Two sons were born to
the couple, elder one Granth Verma is now
aged about eight and half years and the
younger one Yajur Verma is now aged
about four and half years. Parental houses
of both sides are hardly 500 meters away
from each other. The family members of his
wife have been exerting pressure on him to
stay with them.

ii. It is alleged in the petition that
his wife Ashi Verma, all of sudden, in a
pre-planned manner stepped down from the
train in the night of 27/28.09.2021 at Jhansi
Railway Station, when they were returning
from Ujjain. He lodged a missing report
and she was recovered from Gwaliar
railway station and was given in custody, to
her father Kamlapati Verma. In pursuance
of this conspiracy between his wife and
father-in-law, his two sons were snatched
away by his wife and her father and they
left for Etawah. The petitioner requested
his father-in-law and his wife to return the
kids but they did not budge. They
pressurized Gaurav Verma but he refused to
sign certain papers. Thereafter his wife
lodged a false F.I.R. as case crime no.433
of 2021, under Sections 307, 498A, 323,
504 120 B, I.P.C., Another case under
Section 125 Cr.P.C. has been filed against
the petitioner which was decided on the
basis of a compromise. With the permission
and consent of the petitioner corpus was
admitted in pre-nursary class in Etawah.
However, all of sudden without informing
him, Yajur Verma was withdrawn from his
school at Etawah and has been admitted in
a school at Lucknow. Opposite party no.4,
Ashi Verma, his wife is now pursuing LLB
course at Etawah. These facts have proved
that Yajur Verma, their minor son is not in
custody of his mother and has been left
under the care of some distant relative or
some other. In view of the above facts, the
petitioner has no alternative remedy except
to file this habeas corpus writ petition for
production of his child.

iii. One of the contentions of the
petitioner is that earlier a Habeas Corpus
Writ Petition no.521 of 2022, Gaurav
Verma vs. State of U.P. and others was filed
by respondent no.4 with regard to elder son
Granth Verma which was decided by a
coordinate Bench of this High Court by
order dated 22.09.2022, in which following
directions were issued :-

"I. The Corpus shall remain
with his father till a contrary direction, if
any, is passed by any Court of Law.

II. Father shall not obstruct or
object the visiting rights of mother of
Corpus and he shall permit his mother to
meet the Corpus on any day with prior
notice as well as on each Sunday in day
time at his home and father will also have
similar liberty to meet his younger son at
his mother's home.

III. Mother and father of Corpus
are also directed not to create any ruckus
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."
2 All. Yajur Verma @ Jai Verma Vs. State of U.P. & Ors.
109

In view of said order passed by
the High Court, the argument of the
petitioner is that he was given visiting right
in respect of his younger son at his
mother's house and his wife Ashi Verma
has deliberately shifted his younger son to a
boarding school at Lucknow, therefore, he
can no longer meet him.

iv. A special appeal was filed
challenging the aforesaid order dated
22.09.2022 which was decided by order
dated 30.11.2022. In the aforesaid order he
was again granted a right to meet his
younger child Yajur Verma @Jai Verma in
the house of Smt. Ashi Verma. The High
Court had directed Ashi Verma to allow a
weekly meeting of father with his younger
son, every Saturday. On the basis of the
aforesaid orders dated 22.09.2022 and
30.11.2022 it is vehemently argued that the
child has been deliberately removed to
Lucknow just to defeat the aforesaid orders
and that this facility should be restored
immediately.

4. It may be noted that the petition is
spread into over 40 pages containing
incidents told elaborately with rather ornate
and longish descriptions, many of them
may not be related to main relief, hence I
do not find it necessary to allude to all of
them.

5. In the counter affidavit filed by
opposite party no.4, deponent Ashi Verma
has levelled most of the paragraphs of the
petition as misleading, misconceived and
fake.

It is submitted by her that the sole
purpose behind the request to arrange his
visit to meet his son is actually part of plot
to kill her. She had noticed that two
unknown persons were talking with her
husband and she was in fact pushed out
from the train when it had just started from
Jhansi. She sustained injuries but she was
saved and this was the reason they did not
stop the train and did not get down for
searching her. She was found lying
unconscious near the track and was saved
by some school going girls. Thereafter she
herself went to police station and narrated
the story and at that time she refused to go
with her husband and mother-in-law and
both of her sons refused to go with father
and accompanied her. Later on her elder
son was kidnapped by his father. She
submits that in order to provide best
education to her children she has got
admitted younger son to a best school in
Lucknow, where he is studying as a regular
student.
She
herself
intends
to
get
admission in Lucknow so that she can take
care of her son. Her son is in a day
boarding school and his school timing is
9.30 A.M. to 4.50 P.M. Her husband has
not given her any alimony. His restaurant is
running in loss and he has always been
very cruel in his behaviour and therefore he
cannot take care of his sons for the reasons
that his financial position is weak and also
that his behaviour is rough and harsh. Her
husband Gaurav Verma has twisted facts
and concocted stories in his defence.
Further it is stated that Yajur Verma is
regularly studying in a very good school of
U.P. and that Gaurav Verma wants to spoil
the younger child in the same manner as he
has been doing with his elder son, who was
kidnapped from the custody of mother just
in order to save himself and his parents
from criminal cases.

6. In the end it is contended that this
habeas
corpus
writ
petition
is
not
maintainable on two grounds. The first
ground is that the child is only four years
old and the mother is his natural guardian
and the second is that Gaurav Verma has
110 INDIAN LAW REPORTS ALLAHABAD SERIES
already filed a case under the Guardian and
Wards Act.

7. I heard both the sides and
interacted with the parties giving them
enough of space and time with a view to
explore the probability of amicable solution
and also to rummage through the real facts
and circumstances which may aid the court
in adjudicating the matter of custody of the
child, which is more often then not a very
sensitive issue between parents.

8. Admittedly the parties are husband
and wife and are living separately since at
least more than two years. The couple have
two sons and this habeas corpus writ
petition has been filed by the father seeking
custody of his younger son who is
admittedly about four years old.

9. The petitioner's straight contention
is that earlier in the petition filed by mother
on behalf of their elder son the High Court
gave him liberty to meet his younger son at
mother's house at Etawah and that as the
child has been removed to Lucknow,
therefore, his right granted by the High
Court stands defeated. This is quite clear
that younger son has been staying with his
mother all along and that he never stayed
with his father alone at any point of time.

10. In Syed Saleemuddin vs. Dr.
Rukhsana and others , (2001)5 SCC 247 it
was observed as below-:

"11. From the principles laid
down in the aforementioned cases it is clear
that in an application seeking a writ of
Habeas Corpus for custody of minor
children the principal consideration for the
Court is to ascertain whether the custody of
the children can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in care and custody of somebody
else. The principle is well settled that in a
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court."

11. The same question again cropped
up before the Hon'ble Supreme Court in
Nithya Anand Raghavan vs. State (NCT of
Delhi) and another, (2017)8 SCC 454 :-

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District Magistrate, Darjeeling [Kanu
Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] ,
has held that habeas corpus was essentially
a procedural writ dealing with machinery
of justice. The object underlying the writ
was to secure the release of a person who is
illegally deprived of his liberty. The writ of
habeas corpus is a command addressed to
the person who is alleged to have another
in unlawful custody, requiring him to
produce the body of such person before the
court. On production of the person before
the court, the circumstances in which the
custody of the person concerned has been
detained can be inquired into by the court
and upon due inquiry into the alleged
unlawful
restraint
pass
appropriate
direction as may be deemed just and
proper.
The
High
Court
in
such
proceedings conducts an inquiry for
immediate determination of the right of the
person's freedom and his release when the
detention is found to be unlawful."

12. In Meenakshi and another vs.
State of U.P. and others Allahabad High
2 All. Yajur Verma @ Jai Verma Vs. State of U.P. & Ors.
111
Court, 2020 12 ADJ 254 it was observed
in para-47 as below:-

"47. In a habeas corpus petition
as aforesaid, the High Court must
examine at the threshold whether the
minor is in lawful or unlawful custody of
another person (private respondent named
in the writ petition). For considering that
issue, in a case such as the present one, it
is enough to note that the private
respondent was none other than the
natural guardian of the minor being her
biological mother. Once that fact is
ascertained, it can be presumed that the
custody of the minor with his/her mother
is lawful. In such a case, only in
exceptionable situation, the custody of the
minor (girl child) may be ordered to be
taken away from her mother for being
given to any other person including the
husband (father of the child), in exercise
of writ jurisdiction. Instead, the other
parent can be asked to resort to a
substantive prescribed remedy for getting
custody of the child."

13. The Hon'ble Supreme Court in
the case of Tejaswini Gaud and Others v.
Shekhar Jagdish Prasad Tewari and
Others, (2019) 7 SCC 42 has observed as
below:

"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.

The Supreme Court has further
observed that 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 and that it is only in suitable cases, the
rights of the parties to the custody of a
minor will be determined in exercise of
extraordinary jurisdiction on a petition for
habeas corpus.

14. In paras 25 and 26 of the
judgement given by Allahabad High Court
in the case of Meenakshi (supra) it has
been held that :

"25. No doubt, the father and the
mother, are both natural guardians, if one
goes by Section 6(a) of the Act of 1956.
The mother's right and that of the father,
under Section 6(a) as to guardianship has
been considered at par by the Supreme
Court in Githa Hariharan (Ms) and
another vs. Reserve Bank of India and
another, (1999) 2 SCC 228. So far as
custody
goes,
as
distinct
from
guardianship, between the two natural
guardians, the mother is to be preferred by
virtue of the proviso to Section 6(a) of the
Act of 1956, in the case of a child below
five years of age.

26. What is important while
deciding the issue of custody between two
natural guardians, is where the minor's
112 INDIAN LAW REPORTS ALLAHABAD SERIES
welfare would be best secured. The statute
indicates a preference for the mother, so
far as a child below five years is
concerned. But, that legislative edict
though a strong indicator, is not to be
construed as an inflexible rule to be
mechanically applied. The question of a
child's welfare is always a matter for the
Court's decision, based on varied factors."

15. From perusing the precedents this
legal position emerges that the habeas
corpus petition is no ordinary remedy and
that the normal procedure would be to
invoke the civil court jurisdiction under the
Hindu Minority and Guardianship Act or
the Guardians and Wards Act. Natural
corollary therefore is that writ jurisdiction
in this regard should be exercised in most
suitable cases if not the exceptional ones.
Secondly that where difficult and complex
questions, as regard custody of minor arise,
the relevant statutory provisions and the
rights of parties emanating therefrom
should be kept in mind. Though welfare of
the child shall still remain the paramount
consideration. The things have to be
balanced between the right of the parties
and child's preference where the child is
capable of forming an intelligent preference
with the ultimate i.e. welfare of the child.

16. The Allahabad High Court in
Meenakshi (supra) was faced with a vexed
and sensitive question of custody of minor
aged four years between his mother and
father. The Court observed that for a child
below five years a mother is to be
preferred, though the ultimate parameter
remains what is best for child's welfare. In
the instant case the corpus, who is around
four years, has been staying with his
mother all along. The petitioner has not
been able to show as to reasons why the
custody of the corpus must change hands
and how he can take better care of him
rather than his mother. This has come in
evidence that corpus is studying at some
good educational institution at Lucknow
and that his mother is having support of her
family in raising the child. The petitioner
has taken shelter of the fact that he was
given right to visit his younger son by an
order passed in Special Appeal No.658 of
2022, Granth Verma Vs. State of U.P. and
others. Admittedly, this matter concerned to
his elder son only. It has already been
shown that this order was passed as an
interim arrangement, by the High Court by
its order dated 30.11.2022. Admittedly
arrangement was purely temporary and was
subject to the condition that mother of
corpus Ashi Verma continued to reside at
Etawah and that in case she changed his
domicile to any other district, the interim
arrangement would stand discharged.

17. In the instant case this is an
admitted position that mother of the child
has got him admitted to a school at
Lucknow and that she planned to shift to
that place to pursue her study/career. The
petitioner has himself said that child has
been shifted to Lucknow. Respondent no.2,
mother has dispelled doubts for the reasons
behind shifting. She has informed in her
counter affidavit that corpus has been
admitted in very good school at Lucknow
and that he (the corpus) is staying with his
mother, his grand mother and grand father.
And meanwhile she too has already shifted
to Lucknow and planned to settle there
permanently. She has imputed several
serious allegations against her husband.
One of them being forcible removal of
elder son from her custody and attempt
being made on her life by pushing her from
a running train. Though her allegations
cannot be ascertained in this habeas corpus
petition, however, the kind of allegations
2 All. Master Mahib Sajjad Masood & Anr. Vs. State of U.P. & Ors.
113
demonstrate
the
huge
and
serious
differences and conflicts the couple have
between them. All said and done the facts
remains that the petitioner has not been
able to show that how it is necessary to
transfer custody of the corpus from mother
to the father at this juncture and how the
welfare of the child would be better served
with his father or how mother is not
entitled or how it is not good to leave the
corpus with his mother.

18. The parties were interviewed and
interacted with, by me in the privacy of my
chamber. I tried to fathom the factors
involved in the matter for the purpose of
exploring
the
chances
of
amicable
settlement as well as for the purpose of
deciding custody of the child. After long
interaction with the two, I came to the
conclusion
that
there
are
issues,
controversies and certain happenings which
cannot be solved by ordinary counselling.
The parties need to go through long and
sustained counselling and that in the
circumstances I find it much better not to
disturb the custody of the corpus at this
juncture and more so to keep him away
from complexities of the relationship
between his parents. This probability
cannot be ruled out that with change of
hands - he might be exposed to certain
other realities of strained relations between
his parents, of which he might be oblivious
of so far. A tender and impressionable mind
is not prepared for a jolt now and in case he
is dislodged from his current environment,
in which he may be comfortable by now,
such a course of action may bring new
revelations which ultimately may not be
conducive for his health.

19. Taking into consideration all the
facts and circumstances, I do not find any
good reason for transferring the custody of
the child to the petitioner. Therefore this
habeas corpus writ petition is dismissed.
----------
(2024) 2 ILRA 113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

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

Habeas Corpus Writ Petition No. 880 of 2023

Master Mahib Sajjad Masood & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Om Prakash Mishra, Sri R.P.S. Chauhan,
Sri Abhishek

Counsel for the Respondents:
G.A., Sri R.P. Ranjan

Civil Law -Guardians and Wards Act, 1890
- Section 17 - Principles of Mahomedan
Law - Sections 352 & 353 - Constitution of
India,1950- Article 226 - Petitioners (father and
7-year-old son) sought habeas corpus for son's
custody
from
mother,
alleging
unlawful
detention post-separation. Court held: (1)
Habeas corpus maintainable only for unlawful
custody; child's welfare paramount, not parental
rights (Syed Saleemuddin Vs Rukhsana, (2001)
5 SCC 247). (2) Under Section 352 of Principles
of Mahomedan Law, mother entitled to custody
(hizanat) of male child until age 7; father's
unwillingness to reunite and mother's capability
favored current custody (Dhanwanti Joshi Vs
Madhav Unde, (1998) 1 SCC 112). (3) No
illegality in mother's custody; child stable in
school and health; detailed inquiry needed for
change (Tejaswini Gaud Vs Shekhar Jagdish
Prasad Tewari, (2019) 7 SCC 42). (4) Father's
talaq claim and prior separation do not override
mother's rights; liberty to seek formal custody
under GWA (Nithya Anand Raghavan Vs St.
(NCT of Delhi), (2017) 8 SCC 454). (5) Corpus