Master Parth Minor And Another vs State Of U.P. And 3 Others
2021 Latest Caselaw 11083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 85
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 615 of 2021
 

 
Petitioner :- Master Parth Minor And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ajay Vikram Yadav,Sunil Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Gautam Chowdhary,J.

Heard learned counsel for the petitioners and Shri Pankaj Srivastava, Shri C.B. Singh and Shri Rakesh Chandra Srivastava, learned A.G.A. for the State.

This writ petition has been filed with the following prayer :-

"(i) a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce the corpus/ petitioner no.1 before this Hon'ble Court and set him at liberty/ custody of petitioner no.2 forthwith;

(ii) any other writ, order or direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case;

(iii) Award cost of writ petition as well as compensation to the petitioners throughout."

The brief facts of the case are that the marriage of the petitioner no.2 was solemnized with the respondent no.4, according to the Hindu rites and rituals on 14.12.2012 and out of wedlock of the petitioner no.2 and the respondent no.4, a baby/ son (petitioner no.1) was born to them who is presently aged about four years. Thereafter some dispute arose between the parties and the respondent no.4, hence a case under section 13B of the Hindu Marriage Act was filed. In paragraph 9 of the said divorce petition, specific averment was made in respect of corpus that he will reside with the petitioner no.2 and the divorce petition was filed with mutual consent of the parties before Principal Judge, Family Court, Firozabad who allowed the same vide judgment and order dated 25.02.2020.

Submission of learned counsel for the petitioners is that as per judgment and order of the Family Court, the petitioner no.1 was living in the custody of petitioner no.2 but all of a sudden on 20.5.2021 when the petitioner no.2 went outside the house, the respondent no.4 reached to the parental house of the petitioner no.2 and forcefully abducted the corpus. He further submits that several efforts in order to get the child back were made but the petitioner no.2 did not return the child and therefore the corpus is illegally detained under the custody of petitioner no.2 and hence, this writ petition is being filed.

In support of his contention learned counsel for the petitioner has specifically placed reliance upon the paragraph 28 of the judgment passed by this Court in the case of (Smt. Meenakshi And Another Vs. State of U.P. and 8 Others) 2020 12 ADJ 254 which are quoted herein below:-

"28. In the same vain are the remarks of the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. In Tejaswini Gaud, it has been held by their Lordships of the Supreme Court:

"35. 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 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."."

Learned A.G.A. on the other hand submits that though the child was abducted from the parental house of petitioner no.2 but no F.I.R. against the said incident was lodged, and after a lapse of three months this petition has been filed at a belated stage which transpires that there is no urgency of exercising this extraordinary jurisdiction in the present matter. He further submits that the proper remedy is before the civil court under the Guardians and Wards Act, 1890.

Learned A.G.A. has also placed reliance on the judgements of :-

(i) Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others (2019) 7 SCC 42 :-

"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."

(ii) Manuj Sharma Vs. State of U.P. and Others [2019(4) ADJ 840 (DB)]. The paragraphs 8-28 of the judgement are relevant which are quoted as under :-

"8. Habeas corpus "ad subjiciendum" means "that you have the body to submit or answer" which is called as Festinum Remedium - A speedy remedy, which has been sought by the petitioner in this instant case.

9. Habeas Corpus is Latin for "you have the body". The writ is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. It is sometimes described as the "great writ". It is considered as a most expeditious remedy available under the law.

10. The meaning of the term habeas corpus is "you must have the body". Halsbury in his Laws of England, 4th Edition, observed as follows: -

"The writ of habeas corpus ad subjiciendum which is commonly known as the writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the queen has a right to inquire into the laws for which any of her subjects are deprived of their liberty."

11. In Corpus Juris Secundum, the nature of the writ of habeas corpus is summarized thus:

"The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designate time and place with the day and cause of his caption and detention to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. 'Habeas corpus' literally means "have the body". By this writ, the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon Jurisprudence."

12. In the Constitutional and Administrative Law by Hood Phillips and Jackson it was stated as under: - (Relied upon by the Supreme Court in the matter of Surinderjit Singh Mand and another v. State of Punjab and another, to highlight the importance and significance of personal liberty, specially with reference to unlawful detention.)

"10. The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant's claim for freedom has been asserted frequently by judies (sic) and writers. Nonetheless, the effectiveness of the remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness of the courts to examine the legality of decision made in reliance on wide-ranging statutory provision. It has been suggested that the need for the "blunt remedy' of habeas corpus has diminished as judicial review has developed into an ever more flexible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae."

13. Lord Halsbury LC in Cox v. Hates held that "the right to an instant determination as to lawfulness of an existing imprisonment" is the substantial right made available by this writ.

14. Likewise in Barnardo v. Ford the writ of habeas corpus has been described as a writ of right which is to be granted ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a case and the return is not good and sufficient he is entitled to this writ as a matter of right.

15. In R. v. Secy. of State for Home Affairs, it has been held that a person is not entitled to be released on a petition of habeas corpus if there is no illegal restraint. "The question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue."

16. Likewise in Cox v. Hakes it has been held that the writ of habeas corpus is an effective means of immediate release from unlawful detention, whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient.

17. A Constitution Bench judgment of the Supreme Court in the matter of Kanu Sanyal v. District Magistrate, Darjeeling and others traced the history, nature and scope of the writ of habeas corpus. It has been held by Their Lordships that it is a writ of immemorial antiquity whose first threads are woven deeply "within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence". Their Lordships further held that the primary object of this writ is the immediate determination of the right of the applicant's freedom and that was its substance and its end. Their Lordships further explaining the nature and scope of a writ of habeas corpus held as under: -

"The writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in the order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restrain". But the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness. The essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ, that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained."

18. In the matter of Union of India v. Yamnam Anand M. alias Bocha alias Kora alias Suraj and another,while explaining the nature of writ of habeas corpus, Their Lordships of the Supreme Court held that though it is a writ of right, it is not a writ of course and the applicant must show a prima facie case of his unlawful detention. Paragraph 7 of the report states as under: -

"7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right."

19. A writ of habeas corpus is not to be issued as a matter of course. Clear grounds must be made out for issuance of such writ. (See Dushyant Somal v. Sushma Somal)

20. In the matter of Usharani v. The Commissioner of Police, Bangalore and others, the writ of habeas corpus has been defined very lucidly as under: -

"The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the Writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that the legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India.

11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words "habeas" and "corpus". "Habeas Corpus" literally means "have his body". The general purpose of these writs as their name indicates was to obtain the production of the individual before a Court or a Judge. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. ... In our country, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this country, which he can enforce under Article 226 or under Article 32 of the Constitution of India."

21. Thus, the writ of habeas corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. The writ is, in form, an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. If there is no legal justification for the detention, the person is ordered to be released. However, the production of the body of the person alleged to be unlawfully detained is not essential before an application for a writ of habeas corpus can be finally heard and disposed of by the court. {See: Kanu Sanyal (supra).}

22. In Nithya Anand Raghavan v. State of NCT of Delhi and others, it has been observed by the Apex Court:

"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 & Ors., (2001) 5 SCC 247, 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.

45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemmuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247, has held that the principal duty of the Court is to ascertain whether the custody of child is unlawful or 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. While doing so, the paramount consideration must be about the welfare of the child. In the case of Mrs. Elizabeth (supra), it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court (see Paul Mohinder Gahun Vs. State of NCT of Delhi & Ors., (2004) 113 Delhi Law Time 823, relied upon by the appellant). It is not necessary to multiply the authorities on this proposition.

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."

23. Further, in Syed Saleemuddin v. Dr. Rukhsana and Ors., it has been observed by the Supreme Court:

"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. Unfortunately, the Judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri M.N. Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children."

24. Having considered the aforesaid judgments of the Supreme Court and the principles laid down in the aforestated cases for grant of writ of habeas corpus, it appears that the condition precedent for instituting a petition seeking writ of habeas corpus is the person for whose release, the writ of habeas corpus is sought, must be in detention and he must be under detention by the authorities or by any private individual. It is his detention which gives the cause of action for maintaining the writ of habeas corpus. If the allegations in the writ of habeas corpus read as a whole do not disclose the detention, in other words, if there is no allegation of illegal detention, the writ petition seeking writ of habeas corpus is liable to be rejected summarily. Such writ is available against any person who is suspected of detaining another unlawfully and the habeas corpus Court must issue it, if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ can be addressed to any person whatever - an official or a private individual - who has another in his custody.

25. In view of the principles of law laid down by various Courts, if facts of the present case are seen, it is apparent that the petitioner has failed to demonstrate that his two minor children are illegally detained by his wife (respondent no.7). The limited contention of the petitioner is about the welfare of his children, which according to his own assessment, can be better if children would be with him. We are afraid, this self-appreciated statement of the petitioner will not give him any benefit in the present case. The mere fact that the financial condition of the petitioner is superior than that of respondent no.7, does not give him any right for issuance of writ of habeas corpus. If financial position is the only criteria, then in every case, a person who is financially strong would claim custody of child. If a mother is struggling for her rights along with her children, even assuming that she is financially weak, she cannot be deprived of her children just because her husband is a moneyed man. The judgments relied upon by counsel for the petitioner are of no help to him. Even otherwise, in the case in hand, age of the second child of the petitioner and respondent no.7 is just about 2 1/2 years and, we do not wish to separate the small baby from her mother as well as her sister.

26. From the pleadings of the parties and after hearing the arguments, it appears that various allegations are levelled by the parties against each other. It further appears that the parties have not made any effort for amicable settlement and are approaching the Court by filing one case after another. We hope that some efforts would be made by the parties for amicable settlement and, according to us, that would be actual welfare of the children.

27. In view of the aforesaid, in our considered opinion, the petition has no substance, as no ground whatsoever has been made for issuance of writ of habeas corpus. Accordingly, we decline to exercise the jurisdiction for issuance of writ of habeas corpus.

28. The writ petition is, accordingly, dismissed. However, dismissal of writ petition shall not preclude the petitioner from seeking remedy available to him in law. Any observation made by this Court, while deciding this writ petition, shall not come in the way of either party."

The same question was involved before the larger bench of this Court that whether the habeas corpus is maintainable or not.

Both the judgments very clearly demonstrates that it is not a proper forum to decide such cases and the habeas corpus is very extraordinary jurisdiction to be exercised in such cases where the illegal confinement of the corpus is established. In the present case the incident took place on 20.5.2021 where the son of petitioner no.2 was abducted by his father. The dispute is between father and mother. Both are the natural guardians of the child and therefore the proper remedy does not lie before this Court. This matter is of the civil nature which can be determined only by the civil court at appropriate forum.

Moreover, in the present case no F.I.R. was lodged with regard to incident which took place on 20.5.2021. That from perusal of the paragraph-9 of the application it transpires that this petition has been filed after the lapse of three months. The argument raised by the petitioner that while allowing the application 13B dated 25.2.2020 that it was settled between the parties that the child-Parth will remain with the mother which is not evident from the order passed by the court below, hence, this argument of the petitioner's counsel is not sustainable. The custody of the child can be claimed before the civil court at appropriate forum.

Moreover, the learned counsel for the petitioner relied upon the judgement of Smt. Meenakshi And Another Vs. State of U.P. and 8 Others) 2020 12 ADJ 254. The aforesaid judgement is based upon the judgement of Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42.

Now from perusal of this judgement paragraph 20 of the judgement clearly states that the writ of habeas corpus can be revoked only in extraordinary circumstances. The judgement also transpires that for the paramount welfare of the ward, the other things are also considered and in the present case the welfare of the child is to be examined, so at this stage the detailed consideration is required and the judgement itself says that in such cases where the court is of the view that detailed inquiry is required the Court may decline to exercise the extraordinary jurisdiction and direct the party to approach the civil court.

From perusal of these judgements the counsel for the petitioner failed to invoke any extraordinary jurisdiction in the present matter.

That after considering the aforesaid judgements and in view of the discussions made above, this habeas corpus petition stands dismissed.

Order Date :- 14.9.2021

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