Priyanshu (Minor) vs State Of U.P. And 5 Others
2021 Latest Caselaw 9209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 84
 
Case :- HABEAS CORPUS WRIT PETITION No. - 429 of 2021
 
Petitioner :- Priyanshu (Minor)
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Jitendra Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Jitendra Kumar, learned counsel for the petitioner and Sri Sameer Shankar, learned Additional Government Advocate appearing for the State-respondents.

2. The present petition has been filed on behalf of petitioner (minor) through Jai Singh who has asserted to be father of the minor.

3. Pleadings in the petition indicate that soon after the birth of the petitioner (corpus), on 17.02.2018, some dispute arose between his father and mother (Respondent No.4) and on 22.10.2020 when the petitioner was about two years of age the Respondent No.4 left her matrimonial home along with the minor child. It is an admitted fact that the Respondent No.4 has not returned to her matrimonial home since then. 

4. Learned Additional Government Advocate on the basis of instructions submits that the Respondent No.4 along with her minor child is living separately and that some litigation is pending between the parties before the Family Court.

5. Learned counsel for the petitioner submits that the matter which is pending before the Family Court is under Section 13 of the Hindu Marriage Act, 1955 i.e. proceedings for divorce. He states that the only relief which is being sought in the present proceedings is a claim related to custody of the minor child.

6. The dispute between the parties, which is sought to be agitated by means of the present petition, essentially is, regarding the custody of the minor child, who is presently about three and a half years of age (date of birth-17.02.2018).

7. In a petition seeking a writ of habeas corpus in a matter relating to a claim for custody of a child, the principal issue which is to be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal.

8. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain vs. State of U.P. and others1 and Kanu Sanyal vs. District Magistrate Darjeeling2.

9. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

10. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan Vs. State (NCT of Delhi) and another3, and it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.

11. Taking a similar view in the case of Sayed Saleemuddin vs. Dr. Rukhsana and others4, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:-

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

12. The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others5, and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows:-

"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

x x x

19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

13. It is, therefore, seen that in an application seeking a writ of habeas corpus for custody of a minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

14. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

15. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate court. The aforementioned legal position has been considered in a recent judgement of this Court in Rachhit Pandey (Minor) And Another vs. State of U.P. and 3 others6, Master Manan @ Arush Vs. State of U.P. and others7 and Krishnakant Pandey (Corpus) and others Vs. State of U.P. and others8.

16. In the present case, it has been pointed out that the date of birth of the child is 17.02.2018, and in terms of the provisions under Section 6 (a) of the Hindu Minority and Guardianship Act, 19569 the custody of a minor who has not completed the age of five years is to be ordinarily with the mother, and in view thereof the custody of the petitioner (minor son) with the respondent no.4 (mother) prima facie cannot be said to be illegal.

17. It is undisputed that the minor child is with his mother since 22.10.2020 under her custody. The submissions of the counsel for the parties indicate the existence of a dispute between the parties and also pendency of proceedings for divorce under Section 13 of the Hindu Marriage Act, 195510.

18. A writ of habeas corpus, as has been consistently held, though a writ of right 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. 

19. The subject matter relating to custody of children during the pendency of the proceedings under the HMA is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives the power to the court to make provisions in regard to: (i) custody, (ii) maintenance, and (iii) education of minor children. For this purpose the court may make such provisions in the decree as it may deem just and proper and it may also pass interim orders during the pendency of the proceedings and all such orders even after passing of the decree.

20. The provisions under Section 26 of the HMA were considered in Gaurav Nagpal v Sumedha Nagpal11, and it was held as follows:-

"Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible."

21. In the case at hand, proceedings under the HMA being pending before the Family Court, it is open to the parties to invoke the jurisdiction of the court under Section 26 for seeking orders with regard to custody of the minor.

22. It is made clear that the observations made, herein above, are prima facie in nature and the same are without prejudice to the rights and contentions of the parties, which may be agitated in proceedings before the appropriate forum.

23. Having regard to the aforestated facts, this Court is not inclined to exercise its extraordinary jurisdiction in the matter.

24. The petition stands accordingly dismissed.

Order Date :- 2.8.2021

Imroz/Pratima

(Dr.Y.K.Srivastava, J.)