Km. Lipsa Singh Thru. Father Surya ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
2025 Latest Caselaw 12137 ALL

Allahabad High Court

Km. Lipsa Singh Thru. Father Surya ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 6 November, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:69905
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
HABEAS CORPUS WRIT PETITION No. - 253 of 2025   
 
   Km. Lipsa Singh Thru. Father Surya Pratap Singh And Another    
 
  .....Petitioner(s)   
 
 Versus  
 
   State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Dr. Pooja Singh, Shivangi Paliwal , Surya Prakash Tiwari   
 
  
 
Counsel for Respondent(s)   
 
:   
 
G.A., Lalendra Pratap Singh   
 
     
 
 Court No. - 13
 
   
 
 HON'BLE SAURABH LAVANIA, J.      

1. Heard Dr. Pooja Singh, learned counsel for the petitioners, Sri Lalendra Pratap Singh, learned counsel for the opposite party no. 3 and the learned AGA for the State.

2. Km. Lipsa Singh, aged about 8 years (petitioner no. 1) and Master Dev @ Abhiraj, aged about 3 years (petitioner no. 2) are in custody of Smt. Gyan Mati Singh, maternal grandmother, and by means of the instant petition the father namely Surya Pratap Singh is claiming the custody of the minors namely Km. Lipsa Singh and Master Dev @ Abhiraj.

3. Learned counsel for the opposite party no. 3, Sri Lalendra Pratap Singh has submitted that the present petition is liable to be dismissed in view of the specific remedy available under the Guardians and Wards Act, 1890 (in short 'Act of 1890').

4. On the other hand, learned counsel for the petitioner has stated that the present petition is maintainable in view of the facts of the case read with various pronouncements. In addition it is stated that the minors are in custody of opposite party no. 3, Smt. Gyan Mati Singh, who is maternal grandmother, and this petition has been filed for taking custody of Km. Lipsa Singh and Master Dev @ Abhiraj by the father Surya Pratap Singh and therefore the petition is liable to be entertained.

5. Reliance in the facts of the case has been placed on the judgment passed in the case of Gautam Kumar Das Vs. NCT of Delhi and Others, reported in (2024) 10 SCC 588.

6. Relevant paragraphs of the judgment, referred, are as under:-

"18. Before we come to the facts of the present case, it would be apposite to refer to the observations of this Court in the case of Tejaswini Gaud (supra), wherein this Court was considering almost similar facts as have arisen in the present case. In the said case also,after the marriage, the wife was detected with breast cancer and the husband had fallen ill with Tuberculosis Meningitis and Pulmonary Tuberculosis. While the husband was undergoing treatment, one of the sisters of the wife and her husband took the minor child Shikha and her ailing mother to their residence at Mumbai. During the treatment, the wife succumbed to her illness. The minor child continued to be in the custody of the sister of the wife and her husband. Since the father was denied the custody of the minor child, he approached the High Court by way of writ petition seeking writ of habeas corpus. The High Court allowed the petition and directed the custody of the minor child to be handed over to the husband. Being aggrieved thereby, the sister of the wife and her husband approached this Court. Before this Court, an objection was taken to the very tenability of the petition of habeas corpus filed under Article 226 of the Constitution of India. Rejecting the said argument, this Court observed thus:

?21.In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1 years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.?

19. In the said case, after considering the earlier pronouncements, this Court further observed thus:

?34. As observed in Rosy Jacob[Rosy Jacobv.Jacob A. Chakramakkal, (1973) 1 SCC 840] earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic wellbeing of the guardian, child's ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable.

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.?

20. Like the facts in the case of Tejaswini Gaud (supra), the facts in the present case are also peculiar. The appellant?s wife died due to COVID infection and as such, he was forced to give the custody of the minor child Sugandha Das to respondent Nos. 5 and 6, who are the sisters of the deceased wife. Looking at the very tender age of the child Sugandha Das at that time, the appellant could not have looked after her. However, the appellant was looking after his son Divyanshu Das, who was relatively older. Subsequently, the appellant remarried. Now, he and his wife can very well look after the minor girl Sugandha Das. A perusal of the photographs placed on record would also reveal that pursuant to the visitation rights granted by the High Court and this Court, the minor child has gelled well with the family and the family of four appears to be happy.

22. Insofar as the fitness of the appellant is concerned, he is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi. The appellant?s residence is also in Delhi whereas respondent No. 6 to whom the custody of the minor child was handed over to by respondent No. 5 is residing at a remote village in West Bengal. Apart from taking care of his children, the appellant can very well provide the best of the education facilities to his children. The child Sugandha Das,who lost her mother at tender age,cannot be deprived of the company of her father and natural brother. At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child.

23. In our opinion, merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child Sugandha Das and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian.

24. Insofar as the allegations made against the appellant by respondent Nos. 5 and 6 are concerned, it appears that they have been made only as an afterthought, and especially after the appellant started asserting his claim for the custody of his minor daughter Sugandha Das. Insofar as the judgments of this Court on which respondent Nos. 5 and 6 have relied upon, we can only say that there cannot be any straightjacket formula in the matters of custody.

25.Recently, this Court,in the case of Nirmala (supra) in paragraph 16 has also observed that no hard and fast rule can be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of minor child is concerned. It has been held that as to whether the writ court should exercise its jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case.

26. However, it is to be noted that a common thread in all the judgments concerning the custody of minor children is the paramount welfare of the child. As discussed hereinabove, we find that, apart from the appellant being the natural guardian, even in order to ensure the welfare of the minor child, she should live with her natural family. The minor child is of tender age,and she will get adapted to her natural family very well in a short period. We are therefore inclined to allow the appeal."

7. It is also stated that the minors, namely Km. Lipsa Singh and Master Dev @ Abhiraj were born out of the wedlock of Surya Pratap Singh, who is well educated and is discharging his duties of the post of Teacher under the department of Basic Education and is earning handsome salary, and Deepa Singh, daughter of opposite party no. 3, who died in the hospital in the month of November, 2022, which is maternity death.

8. It is further stated that on account of death of Deepa Singh there was no one at the relevant point of time to take care of the minors including infant (Master Dev @ Abhiraj) and therefore under compelling circumstances, the custody of minors were given to opposite party no. 3.

9. It is further stated that after sometime the custody of Km. Lipsa Singh and Master Dev @ Abhiraj was demanded by the father of the minors and the same was provided by the opposite party no. 3 in the month of May, 2024 and thereafter the petitioner no. 1, Km. Lipsa Singh was admitted in the school where Suraj Singh, father of the minors is teaching, and thereafter in the month of September, 2024 the in-laws including the opposite party no. 3 visited the house of the petitioner and took the custody of the minors and when the custody of minors was again demanded the same was refused by the opposite party no. 3.

10. It is also stated that in the aforesaid background of the case, the custody of the minors be provided to Surya Pratap Singh, father of the petitioner no(s). 1 and 2.

11. Opposing the present petition, in addition to the ground of maintainability of instant petition, learned counsel for opposite party no. 3 also stated that there is no one to look after the minors in the matrimonial house of Late Deepa Singh and the mother of the father of the petitioners is suffering from mental illness. It is to be noted there is no evidence to support the fact that mother of Surya Pratap Singh is suffering from mental illness and in this regard of the case counsel for the opposite party no. 3, Sri Lalendra Pratap Singh, fairly stated that there is no evidence to establish this aspect of the case.

12. Upon due consideration of the aforesaid, this Court finds that the present petition despite of the remedy available under the Act of 1980 is liable to be entertained and the custody of the minors namely Km. Lipsa Singh aged, about 8 years, and Master Dev @ Abhiraj, aged about 3 years, be provided to the father Surya Pratap Singh. It is for the following reason:-

(i) Surya Pratap Singh is a Government Teacher and is well qualified as according to the affidavit filed in support of the present petition sworn by him he is M.Sc. B.Ed.

(ii) The fact that he is earning handsome salary, as stated, has not been refuted.

(iii) The custody of minors was provided to the opposite party no. 3 under compelling circumstances which occurred on account of maternity death of Deepa Singh, wife of Surya Pratap Singh, father of minors.

(iv) Being teacher, Surya Pratap Singh, father of minors would provide best educational facilities to the minors.

(v)The minors in the facts of the case are entitled to live with their natural family.

13. For the reason aforesaid, the present petition is allowed.

14. Respondent no. 3 is directed to hand over the custody of the minors, namely, Km. Lipsa Singh and Master Dev @ Abhiraj to Surya Pratap Singh, father of the minors, forthwith.

(Saurabh Lavania,J.)

November 6, 2025

Anurag