Allahabad High Court
Smt. Priyanka And 2 Others vs State Of U.P. And 5 Others on 1 May, 2023
Bench: Om Prakash Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- HABEAS CORPUS WRIT PETITION No. - 836 of 2022
Petitioner :- Smt. Priyanka And 2 Others
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- K.C. Mishra
Counsel for Respondent :- G.A.,Ankur Goyal,Mohd. Naushad Siddiqui
Hon'ble Om Prakash Tripathi,J.
Heard learned counsel for the petitioners and learned counsel for the respondent no.4.
This Habeas Corpus Writ Petition has been filed with a prayer to direct respondent no. 2 to ensure the production of corpus namely Master Shreyas (aged about two years) and Km. Shrishti (aged about three months) from the custody of respondent no. 4 and further be pleased to direct the respondent no. 4 to handover the corpus/infant in the custody of their mother/petitioner no. 1 so that she can get regular breastfeeding to infant/petitioner no. 3 otherwise; petitioner no. 1 has to tolerate acute pain not to get breastfeeding to infant which cannot be compensated in any manner.
Learned counsel for the petitioners submitted that there is a matrimonial dispute between husband and wife and case under section 125 Cr.P.C. has been pending between the parties and father of the corpus respondent no. 4 Uday Thakur has taken the children petitioner nos. 2 and 3 forcefully from the custody of the mother, petitioner no.1. It is also submitted that the corpus petitioner no. 3, who is only three months old, is at the stage of breastfeeding. The welfare protection of the corpus are in the hands of mother.
In support of his contention, learned counsel for the petitioners has relied upon the judgment of the Apex Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, reported in 2019 Law Suit (SC) 1192, wherein the Apex Court held that custody of minor child natural guardian filed writ of habeas corpus for custody of his minor child from relatives of his wife, husband suffering from certain illness, maintainability of writ petition when alternate remedy under Act of 1956 is available. High Court directed appellants to hand over custody of minor child to father, defendant of minor person who is not entitled his legal custody is treated as illegal custody for purpose of granting writ, directing custody of minor child, welfare of the child of paramount consideration, husband cannot be deprived custody of his minor child unless it is shown that he is not fit to be guardian, appellants given liberty to visit child. Thus, it is settled position that the custody of minor child can be exercised in the writ of Habeas Corpus.
Learned counsel for the respondent no. 4 submitted that petitioner no. 1 Smt. Priyanka left children at the residence of opposite party no. 4, father and being father of the corpus, he is looking after of the children. It is also submitted that this Habeas Corpus Writ Petition is not maintainable before this Court as petitioner no. 1 has legal remedy under the Guardians and Wards, hence this writ petition is liable to be dismissed.
In support of his contention, learned counsel for the respondent no.4 has placed his reliance upon judgment of this Court dated 03.09.2020 passed in Sahil (Minor) and another vs. State of U.P. and three others, Habeas Corpus Writ Petition No.387 of 2020, wherein Court held that writ of habeas corpus is not maintainable, only custody of minor child can be given under Guardians and Wards Act.
On 20.07.2022, both the corpus were taken under the custody of their father. The petitioner no.2 Master Shreyas (aged about two years) and petitioner no. 3 Km. Shrishti (aged about three months), their protection and welfare is in the hands of the mother as she was breastfeeding mother.
Keeping in mind paramount consideration of welfare of children, this Court is of the considered opinion that custody of the children should be handed over to the mother i.e., the petitioner no.1 because she is the natural guardian as corpus are below five years.
This Habeas Corpus Writ Petition is disposed of with the direction that respondent no. 4, father of corpus shall hand over the custody of both the corpus, petitioner nos. 2 and 3, i.e. Master Shreyas (aged about two years) and Km. Shrishti (aged about three months) to petitioner no.1 Smt. Priyanka on 07.05.2023 at 10:00 AM at the residence of petitioner no.1. Both the parties shall cooperate with each other. The respondent no. 4 is given right to visit their children (corpus), petitioner nos. 2 and 3 on every Sunday between 10:00 AM to 05:00 AM at the residence of petitioner no. 1.
With the aforesaid observations/direction, this Habeas Corpus Writ Petition is disposed of.
Order Date :- 1.5.2023/Monika
