Allahabad High Court
Ravi Singh And Another vs State Of U.P. And 4 Others on 14 November, 2022
Bench: Manoj Misra, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL No. - 622 of 2022
Appellant :- Ravi Singh And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Abou Sofian Usmani
Counsel for Respondent :- C.S.C.,Dhiraj Singh
Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
Heard learned counsel for the appellants and the learned Standing Counsel who appears for the Respondents 1, 2 and 3.
This intra-court appeal is against the judgment and order dated 29.4.2022 of the learned Single Judge dismissing the Habeas Corpus Petition filed by the appellant no.1 (natural father of the corpus) seeking production of the corpus (appellant no.2) who is currently in the custody of his natural mother (respondent no.4).
The learned counsel for the appellants submitted that the learned Single Judge has dismissed the Habeas Corpus Petition upon finding that the custody of the corpus with his natural mother cannot be termed unlawful, inasmuch as, firstly, she is the natural guardian and, secondly, in proceedings under Section 13B of the Hindu Marriage Act between the appellant no.1 and the respondent no.4 a statement of the appellant no.1 was recorded that the custody of the minor child (the corpus) shall remain with the mother.
It has been submitted that the learned Single Judge has failed to accord consideration to the fact that since the decree of divorce, the respondent no.4 has remarried and, therefore, for the welfare of the corpus, the custody of the corpus was sought by the petitioner (the appellant no.1), in such circumstances, the Habeas Corpus Petition ought to have been allowed or at least visitation rights could have been accorded to the father.
We have considered the submission of learned counsel for the appellants. No doubt, there is no bar in deciding an issue with regard to the custody of a minor in habeas corpus jurisdiction particularly, when a change of custody is urgently required to secure the welfare of the minor but, ordinarily, while deciding a habeas corpus petition the primary consideration is as to whether the present custody of the minor is lawful or not.
In the instant case, the learned Single Judge has taken notice of the facts and circumstances of the case, from which it appeared that inter se husband and wife, there had been proceedings under Section 13B of the Hindu Marriage Act resulting in a divorce by mutual consent wherein a statement of the father (the appellant no.1) was recorded accepting that the custody of the corpus shall remain with the wife.
In such circumstances, prima facie, custody of the child was not unlawful with the mother and there was no such emergency situation pleaded which may have warranted exercise of the habeas corpus jurisdiction as to transfer the custody from the natural mother to the natural father.
Consequently, the dismissal of habeas corpus petition cannot be termed erroneous. However, since the learned Single Judge has not clarified in his order that it would be open to the natural father to seek custody of the child in regular proceeding before the appropriate forum, we deem it appropriate to dispose off this appeal by clarifying that the order of the learned Single Judge shall not come in the way of the appellant no.1 to seek for custody of the child in regular proceedings before appropriate forum and any observation made by the learned Single Judge in the order impugned shall not influence the court/ forum where such an application for custody of the child is moved by the appellant no.1.
The appeal is disposed off.
Order Date :- 14.11.2022
N.S.Rathour
