Allahabad High Court
Master Shivansh Mishra, Thru. His ... vs State Of U.P. Thru. Prin. Secy. Home, ... on 14 February, 2025
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:9612
Court No. - 14
Case :- HABEAS CORPUS WRIT PETITION No. - 94 of 2024
Petitioner :- Master Shivansh Mishra, Thru. His Father Vishnu Kumar Mishra
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others
Counsel for Petitioner :- Desh Deepak Verma
Counsel for Respondent :- G.A.,Anil Kumar Mishra,Krishna Kumar Tiwari
Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the petitioner as well as learned counsel for the opposite party no.4 alongwith learned A.G.A. for the State and perused the material on record.
The present writ petition has been filed with prayer to issue writ, order or command in the nature of HABEAS CORPUS commanding the opposite parties to produce the corpus of detenue namely Shivansh Mishra at the earliest before this Court from illegal custody of opposite party no.4 and hand him over to the petitioner so that petitioner being father and natural guardian my have his custody.
It is submitted by learned counsel for the petitioner that in this case he is the father of the child Master Shivansh Mishra who is aged about 1 year and 24 days. The child is living with his grand-parents just after death of his mother during the course of treatment subsequent to delivery. Further submitted that the child is not being looked after properly by his grand-parents, therefore, requested to hand over the custody of the child to the petitioner as being father and natural guardian while directing the parties to produce the Corpus/detenue before this Court.
Learned counsel for the opposite party no.4 as well as learned A.G.A. contended that in this case child is of tender age and in case his custody is transferred to the petitioner, the child will come in miserable state. Further contended that the matter of custody is to be decided before the competent court under the provisions of The Guardians and Wards Act, 1890. Further contended that an application under the aforesaid Act is still pending before the learned Principal Judge, Family Court as Misc. Case No.102/2023 in which rights of the parties are to be decided finally. The visiting right was also given to the petitioner by this Court by order dated 13.05.2024. Learned counsel for the opposite party no.4 also relied his argument on the observation of the Hon'ble Supreme Court as made in the case of Somprabha Rana vs. State of Madhya Pradesh 2024 (10) Scale 265.
Considering the facts and circumstances of the case, submissions made by learned counsel for both the parties and the tender age of the child, it appears that in this case mother of the child died during the course of treatment just after delivery and child was kept by his grand-parents. The child cannot recognize his father as being in tender age and in case custody is transferred from the grand-parents to his father it will surely create miserable condition with the child, therefore, custody of child cannot be transferred in favour of the petitioner at this stage and their respective rights can also be decided before the learned court of Principal Judge, Family Court where Misc. Case in this regard is still pending. In view of the observation of the Hon'ble Supreme Court in para no.11 of the aforesaid judgment, this Court is of the view that this petition lacks merit and is liable to be dismissed.
Accordingly, this writ petition is dismissed. However, the visiting rights of the petitioner as given by this Court vide order dated 13.05.2024 shall continue till the decision of respective rights of parties relating to the custody of child in the aforesaid case.
Order Date :- 14.2.2025
Ashok Gupta
