Raghvendra Kumar Sinha vs The State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 45 of 2023
 

 
Appellant :- Raghvendra Kumar Sinha
 
Respondent :- The State Of U.P. Thru. Prin. Secy. Home Deptt. Lucknow And Another
 
Counsel for Appellant :- Manoj Kr. Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

(C.M.A. No.-1 of 2023)

1. Heard Mr. Ajit Singh, learned counsel for the appellant, Mr. V.P. Nag, learned Standing Counsel appearing on behalf of the State and Mr. Vinay Kumar Mishra, Advocate who has put in appearance on behalf of the opposite party no.2 and filed vakalatnama, which is taken on record.

2. This is an application for condonation of delay in filing special appeal.

3. The application is supported with an affidavit, in which the reasons for delay have been explained sufficiently.

4. Accordingly, application is allowed. Delay, if any, in moving special appeal is hereby condoned.

(Order on appeal)

5. The instant intra-court appeal has been filed against the judgment and order dated 09.12.2019, passed by Hon'ble Single Judge, whereby Habeas Corpus Writ Petition No. 31508 of 2009 filed by the appellant, claiming custody of his minor son from the mother of the minor, has been dismissed.

6. A perusal of the order passed by the Hon'ble Single Judge indicates that the minor son was produced by the respondent no.2 Smt. Vineeta Kumari and he was allowed to meet his father. The Hon'ble Single Judge dismissed the habeas corpus writ petition on the ground that although the father is the natural guardian of the minor son, the issue of custody of the child is to be decided taking into consideration the question of welfare of the child, which is of paramount consideration.

7. We find ourselves in agreement with the view taken by the Hon'ble Single Judge that the issue of custody of child between his father and mother is to be decided on the basis of the welfare of the child, which depends on a number of disputed questions of fact, which can only be decided in appropriate civil proceedings after the parties are given a proper opportunity to lead evidence in support of their respective cases.

8. In view of the aforesaid discussion, the instant special appeal fails and the same is, accordingly, dismissed. However, it is observed in case, any civil proceedings which is initiated in respect of custody of the minor child Rajvardhan, the same will be decided on its merits, without being influenced by any observation made by the Hon'ble Single Judge in the judgment and order dated 09.12.2019 passed by this Court.

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(Subhash Vidyarthi,J.) (Ramesh Sinha,J.)

Order Date :- 3.2.2023

Preeti