Allahabad High Court
Master Mahib Sajjab Masood Thru. His ... vs State Of U.P. Thru. Prin. Secy. Home ... on 13 November, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:72442
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
HABEAS CORPUS WRIT PETITION No. - 295 of 2024
Master Mahib Sajjab Masood Thru. His Mother Smt. Shagufta Parveen @ Shagufta Sajjad
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 5 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Avanindra Singh Parihar, Avanish Kumar Singh, Maitryee Singh, Monika Dwivedi
Counsel for Respondent(s)
:
G.A., Avinash Pratap Singh, Gantavya, Gaurav Upadhyay, Kumar Abhishek, Meha Rashmi, Piyush Singh, Priyanka Singh, Rakshit Raj Singh, Shobhit Mohan Shukla
Court No. - 13
HON'BLE SAURABH LAVANIA, J.
1. Heard learned counsel for the petitioner, learned AGA for the State of U.P. and learned counsels including Sri Kuldeep Rai, Advocate, Ms. Priyanka Singh, Advocate and Sri Gaurav Upadhyaya, Advocate, who appeared for the side opposite namely Sajjad Hasan Masood (father of detenue/Master Mahib Sajjab Masood), Masood Alam, and Smt. Razia (wife of Masood Alam) and filed written submissions in the Court today, which is taken on record, as well as perused the record.
2. The instant petition has been preferred seeking following main relief(s):-
"a. issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite parties, particularly opposite parties no.2 to 6, to produce the detenue/petitioner namely Master Mahib Sajjad Masood before this Hon'ble Court and deliver his custody to his mother- Smt. Shagufta Parveen alias Shagufta Sajjad, forthwith."
3. Initially, when this petition was taken upon, Sri Gantavya, Advocate, who appeared for the side opposite, raised the issue of maintainability/entertainability of the instant petition. This Court decided the said issue and entertained the instant petition vide order dated 12.12.2024. The relevant portion of the order dated 12.12.2025 reads as under:-
"5. Considered the aforesaid and also the following facts:-
(i) The marriage of Smt. Shagufta Parveen alias Shagufta Sajjad, was solemnized with opposite party no.4/Sajjad Hassan Masood on 10.04.2013 and out of this wedlock of the corpus namely Master Mahib Sajjad Masood was born on 06.09.2016.
(ii) As per the recitals in the judgment dated 29.01.2024 passed in HABEAS CORPUS WRIT PETITION No. 880 of 2023 (Master Mahib Sajjad Masood And Another vs. State Of U.P. And 10 Others), Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus (Master Mahib Sajjab Masood), was sent to her matrimonial home by her husband alongwith the corpus on 03.06.2023.
(iii) The opposite party No. 4/Sajjad Hasan Masood, father of corpus, thereafter, filed the HABEAS CORPUS WRIT PETITION No. 880 of 2023, detailed above, before this Court at Allahabad, which was dismissed by this Court after taking note of the facts as indicated by the parties' counsel vide order dated 29.01.2024. The order dated 29.01.2024 on reproduction reads as under:-
"1. Heard Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra, learned counsel for the petitioners, Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-respondents and Sri R. P. Rajan, learned counsel for the respondent Nos. 8, 9, 10 and 11.
2. The present habeas corpus petition has been filed primarily seeking the following relief:-
"1. a writ, order or direction in the nature of mandamus directing and commanding all the respondent authorities as well as private respondents to produce Master Mahib Sajjad Masood the corpus before this Hon'ble Court to set at liberty forthwith and to give custody to his natural guardian - father (petitioner no.2) to secure his future."
3. Pursuant to the rule nisi issued earlier, the petitioner No. 1 (corpus), minor child of age about seven years, has been produced in Court by respondent No. 8, his mother.
4. Respondent No. 8 is present in Court and has been identified by her counsel, Sri R. P. Rajan.
5. The petitioner No. 2, Sajjad Hasan Masood, father of the petitioner no.1 (corpus), is also present in Court, and has been identified by his counsel, Sri Abhishek, learned Advocate holding brief of Sri Om Prakash Mishra.
6. Learned counsel appearing for the respondent No. 8 has stated that the amount as directed by the Court vide its order dated 21.12.2023 has been received by the said respondent.
7. Counsel for the parties do not dispute the fact that looking to the age of the child, it would be difficult to ascertain his wishes and accordingly the question with regard to his guardianship and custody would be required to be considered taking into view the entirety of the facts and circumstances of the case.
8. Learned A.G.A.-I, on the basis of an inquiry from the respondent No. 8, mother of the petitioner No. 1 (corpus), in Court, submits that she has stated that she is presently living at her maternal home. She has stated that she has a post-graduate degree and is capable of looking after her son, who is presently a minor, aged about seven years. She has stated that she was sent to her maternal home by her husband, on 03.06.2023, and thereafter she has not been taken back. She has also stated that she is not averse to going back her matrimonial home, but her husband is not willing to take her back. As regards her minor son, she has stated that the child is going to school and is in good health.
9. Learned A.G.A.-I has also made an inquiry from the petitioner No. 2, in Court, and submits that he has stated himself to be in a government job. On a pointed query, he has expressed his unwillingness to take back the wife stating that there is already a talaq between them.
10. As per the pleadings in the petition, the respondent No. 8 (mother) is stated to have left her matrimonial home, on 02.06.2023, with all her certificates, jewellery and cash, alongwith her minor son, petitioner no.1 (corpus).
11. There is no material to suggest that the petitioner No. 1 (corpus) was forcibly taken away by the respondent No. 8. On the contrary, there is a clear assertion by respondent No. 8 that she was sent alongwith her minor son by the petitioner No. 2 to her maternal home and thereafter she has not been taken back.
12. The petitioner No. 2 (father of the corpus), has categorically stated that he is unwilling to take back the respondent No. 8 (mother of the corpus).
13. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 18901, and an order with regard to guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.
14. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or property of the minor.
15. Section 17 of the GWA relates to matter to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA.
16. It is common ground between the parties that insofar as the question of custody is concerned, their rights are to be governed by the personal law.
17. The matters relating to "Guardianship of Person and Property" are provided under Chapter XVIII of Principles of Mahomedan Law2 and Part-A thereof pertains to "Appointment of Guardians". In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor, are to be made under the GWA.
18. Further, Section 351 of Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the court in appointing guardian to make the appointment consistently with the law to which the minor is subject, keeping in view the welfare of the minor.
19. The subject matter relating to "Guardianship of a Person of a Minor" is dealt with under Part-B of Chapter XVIII of Principles of Mahomedan Law, and Sections 352 and 353 thereof are extracted below:-
"352. Right of mother to custody of infant children.-The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f).
353. Right of Female relations in default of mother.-Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:- (1) mother's mother, how highsoever; (2) father's mother, how highsoever; (3)full sister; (4) uterine sister; (5) consanguine sister; (6) full sister's daughter; (7) uterine sister's daughter; (8) consanguine sister's daughter; (9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters."
20. A conjoint reading of the aforesaid provisions indicates that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years, and failing the mother, the custody of a boy under the age of seven years, belongs to the female relatives in an order under which the mother's mother is shown first.
21. The custody of the petitioner No. 1, corpus (a male child aged about seven years), with the respondent No. 8 (his mother), cannot, therefore, be stated to be prima facie illegal.
22. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.
23. The principal duty of the Court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The principle is well settled that in such matters the welfare of the child is of paramount consideration.
24. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed.
25. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate legal forum.
26. The legal position in this regard has been considered by this Court in a recent judgment in Ujaif @ Noor Alam and others Vs. State of UP and others.
27. In the present case, the custody of the petitioner No. 1, corpus (a minor of aged about seven years), is presently with his mother. The material facts do not, in any manner, suggest that it is a case of illegal detention, and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable.
28. As regards the claim for custodial rights, it is always open to the parties to avail the appropriate remedy for the purpose before the proper forum.
29. The observations made hereinabove are prima facie in nature and the same would be without prejudice to the rights and contentions of the parties, which may be agitated in appropriate proceedings.
30. The rule nisi issued earlier is discharged.
31. The petitioner No. 1 (corpus), would go alongwith the respondent No. 8, to the place from where he has been brought.
32. The habeas corpus petition stands dismissed."
(iv) Thus, till 29.01.2024, the custody of corpus was with his mother/Smt. Shagufta Parveen @ Shagufta Sajjad.
(v) It would not be out of place to indicate that challenging the FIR/Case Crime No. 0269/2024 dated 16.07.2024 lodged by Smt. Shagufta Parveen @ Shagufta Sajjad, mother of corpus, making allegations therein so as to attract the offence as indicated under Section 137(2) of B.N.S., which deals with offence of kidnapping, at Police Station- Gosainganj, District- Lucknow, the opposite party No. 4 filed a Criminal Misc. Writ Petition No. 5449 of 2024 (Sajjad Hasan Masood vs. State Of U.P. Thru. Prin. Secy. Ministry Of Home Affairs, Civil Sectt. Lko And Others), which was dismissed by this Court vide order dated 09.08.2024.
(vi) The order dated 09.08.2024 was challenged by the opposite party No. 4/Sajjad Hasan Masood before the Hon'ble Apex Court by means of a Special Leave to Appeal (Crl.) No(s). 12168/2024 and the same has also been dismissed by the Hon'ble Apex Court vide order dated 18.10.2024 (annexed as Annexure No. RA-2 to the rejoinder affidavit).
6. From the aforesaid facts as also Annexure No. 3 to this petition, which are the copies of photographs, and also the facts that after judgment and order dated 29.01.2024, quoted above, passed in Habeas Corpus Petition filed by opposite party no.4 and lodging of FIR, detailed above, on 16.07.2024 the opposite party no.4, father of corpus, filed the Suit No. 99/2024, on 31.08.2024, under the Act of 1890 and initiated the proceedings under Juvenile Justice Act, 2015, it is crystal clear that the opposite party No. 4/Sajjad Hasan Masood took the custody of child/Master Mahib Sajjab Masood (corpus) forcibly.
7. In view of aforesaid and also taking note of the observations made in the judgment passed by the Hon'ble Apex Court in the case of Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others reported in (2019) 7 SCC 42, this Court is of the view that the instant petition is liable to be entertained. Ordered accordingly.
8. Let the matter be listed on 19.12.2024.
9. Master Mahib Sajjab Masood (corpus) shall be produced before this Court on the next date of listing.
10. Senior Registrar of this Court is directed to communicate this order to the following authorities:-
(1) District Judge, District Hooghly
(2) C.J.M., District Hooghly
(3) Child Welfare Committee, Hooghly, Juvenile Justice (Care and Protection of Children) Act, 2015, A Bench of Judicial Magistrate of First Class, Uttarpara, Children Home for Girls, 7, Rajmohan Road, Uttarpara, Hooghly."
4. A perusal of above quoted order dated 12.12.2024 indicates that this Court for the purposes of entertaining the instant petition recorded specific finding(s), according to which the opposite party No. 4 took the custody of Master Mahib Sajjab Masood (corpus/detenue) forcibly and the forcible custody was taken prior to 16.07.2024, on which date the FIR was lodged against the opposite party No. 4/Sajjad Hussain Masood with regard to taking forcible custody of the minor and the opposite party No. 4 thereafter filed a Suit No. 99/2024 on 31.08.2024 under the Guardians and Wards Act, 1890 (in short "Act of 1890").
5. The finding(s) recorded by this Court in the order dated 12.12.2024 with regard to taking custody of the minor forcibly by the opposite party No. 4/Sajjad Hussain Masood have not been set-aside rather have been affirmed by the Division Bench of this Court vide order dated 18.12.2024 passed in Special Appeal No. 293 of 2024 (Sajjad Hasan Masood and 2 others vs. State of U.P. Thru. The Prin. Secy. Home Deptt. Lko and 3 others). Thus, the said finding(s) recorded by this Court in the order dated 12.12.2024 are intact.
6. After the order dated 18.12.2024 passed in Special Appeal No. 293 of 2024, this Court had passed the order dated 10.09.2025 in this petition, whereby directed the side opposite to produce the detenue before this Court. The order dated 10.09.2025 was impeached/assailed by the side opposite before the Hon'ble Apex Court by means of Special Leave to Appeal (Criminal) No(s). 7491 of 2025 (Sajjad Hasan Masood and Ors. vs. State of U.P. and Ors.). The Hon'ble Apex Court after hearing learned counsel for the parties on 20.03.2025 had passed the following order:-
"UPON hearing the counsel the Court made the following
O R D E R
We dispose of this Special Leave Petition by directing the petitioner-father herein to produce the child before the Lucknow Bench of the Allahabad High Court either in-person or through video conferencing facility tomorrow i.e. 21.03.2025.
In view of the aforesaid order, we have not expressed any opinion on any other portion of the impugned order.
Pending application(s), if any, shall stand disposed of."
7. After the aforesaid, being aggrieved by the order dated dated 10.09.2025 passed by this Court related to production of minor/detenue, the opposite party No. 4 again approached the Hon'ble Apex Court by means of Special Leave to Appeal (Crl.) No(s). 11954 of 2025 (Sajjad Hasan Masood and Ors. vs. State of U.P. and Ors.), which was finally decided the Hon'ble Apex Court vide order dated 22.09.2025. The order dated 22.09.2025 reads as under:-
"UPON hearing the counsel the Court made the following
O R D E R
Learned senior counsel appearing for the petitioner(s) drew our attention to the latest order of the High Court dated 10.09.2025 wherein the Allahabad High Court has once again directed that the appellant(s) along with the minor child to appear inperson today (22.09.2025). Learned senior counsel submitted that the Habeas Corpus petition could be disposed of in accordance with law by the High Court. The presence of the petitioner(s) as well as the minor child may not be necessary for that purpose, since the petitioner(s) have engaged the services of a counsel, who would represent the petitioner(s) and the petitioner(s) are also willing to appear before the High Court virtually along with the child as and when required. He further submitted that the earlier order passed by the High Court directing that the petitioner(s) appear with the minor child in-person was modified by this Court to hold that the petitioner(s) could appear along with the minor child virtually. In the circumstances, the impugned order may be set aside.
Per contra, learned counsel for the respondent(s)-(petitioner before the High Court) also acknowledged the fact that on the earlier occasion, the petitioner(s) appeared along with the minor child virtually; that the Habeas Corpus petition filed by the respondent(s) herein may be disposed of expeditiously.
In the circumstances, we request the High Court to dispose of the petition filed by the second respondent herein as expeditiously as possible.
Needless to observe that in the event the High Court requires that the petitioner(s) and the minor child should be present before the Court, it shall be only virtually and not in-person.
We expect that the High Court shall not modify the aforesaid direction by passing a contrary direction that the petitioner(s) and the minor child shall appear in-person before the High Court.
This Special Leave Petition is disposed of in the aforesaid terms.
All contentions on both sides are left open to be advanced before the High Court.
Pending application(s), if any, shall stand disposed of."
8. In support of his case which in nutshell is that the present petition be dismissed in view of the fact that there is an order dated 11.03.2025 passed in Guardianship Case No. 99 of 2024 by the District Court at Hooghly whereby the custody of minor has been provided to the opposite party No. 4, the learned counsel for the opposite party No. 4 has placed before this Court a copy of written submissions. The written submissions are extracted hereunder:-
"1. That at the very outset, it is respectfully submitted that the present Habeas Corpus Writ Petition, as filed by petitioner, is not maintainable in law. The writ of habeas corpus is an extraordinary and prerogative remedy, the foundation of which rests only upon proving that the detention or custody is illegal, unlawful, or without authority of law. In the present case, the minor child is in the lawful custody of his natural guardian-his father, respondent No. 4 pursuant to a detailed judicial determination under the Guardians and Wards Act, 1890, and further fortified by orders of the statutory Child Welfare Committee (Hooghly) under the Juvenile Justice Act, 2015.
2. That it is trite law, as held by the Hon'ble Supreme Court in Nirmala v. Kulwant Singh (2024) 10 SCC 595 and Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, that the writ of habeas corpus can only be invoked in custody disputes where the child is shown to be under illegal detention or confinement. Where custody is lawful, recognized, and supported by competent judicial or statutory authority, the remedy of habeas corpus does not lie, and the ordinary remedy under the Guardians and Wards Act or appeal therefrom is the proper course of law.
3. That in the instant case, a judgment and order dated 11.03.2025 has been passed by the Ld. Additional District Judge, Hooghly in Guardianship Case No. 99/2024, after a detailed inquiry, recording of evidence, and consideration of documents. The said Court was fully satisfied that the welfare of the minor required his custody to remain with the father. Once such a decree is passed by the competent jurisdictional court, then this Hon'ble High Court cannot, in parallel habeas corpus proceedings, reopen or bypass the statutory scheme under the 1890 Act. To support the submission the reliance is being made on an order passed by this Hon'ble Court in Smt. Manju Yadav Thru Its Husband ... vs State Of U.P. & 2 Others on 25 July, 2016 HABEAS CORPUS WRIT PETITION No. 22578 of 2016. where this Hon'ble court while dismissing the petition held that "if any order of competent court/ magistrate court is in existence and custody have been awarded to the parents and that order in itself is not beyond the jurisdiction of the magistrate court then same should not be interfered..."
4. The present writ petition filed by the wife against the husband is also natural guardian as per the Mohammedan law has indisputably going through a matrimonial dispute hence, allegations and counter allegations have been levelled by the parties against each other hence this Hon'ble court may not infer that the child had been illegally detained by the respondent no. 4. Moreover, as the relief sought by the petitioner in prayer clause (A) to deliver the custody of the child to her, which basically pertains to child custody matters and the ordinary remedy qua the same lies only in Guardians and Wards Act. There are significant differences between the enquiry under Act VIII and the exercise of powers of a writ court which is summary in nature. The same has been reiterated by the Hon'ble High Court at Calcutta in XXXXX vs State of West Bengal in WPA(H) 13 of 2023 and also by the Hon'ble High Court of Punjab and Haryana at Chandigarh in Veerpal kaur us state of Punjab and ors CRWP-6232/2025.
5. That time and again it is reiterated by the apex court as well as the different Hon'ble High courts of the country that the writ of habeas corpus originated in Anglo-saxon Jurisprudence and is an extraordinary remedy where a person is entitled to institute proceeding for the purpose of liberating another from illegal imprisonment on the applicant showing cause that the applicant is legally entitled to the custody of detenu. In the present case, the petitioner is not legally entitled to the custody of the child as the custody is by virtue of the magistrate's order under ACT VIII and this Hon'ble Court cannot be treated as appellate forum. The petitioner was well aware of the custody proceeding instituted before Hoogly Court, West Bengal but chose not to appear and contest the same rather filed the present Writ Petition and mislead this Hon'ble court on one and another instances. The act of the petitioner explicitly shows the malafide intention of the petitioner to get relief from the court by misleading, which means that the petitioner has not approached this Hon'ble Court with clean hands.
6. That the Hon'ble Supreme Court in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 has held that custody matters are best resolved under the statutory enactments providing for detailed inquiry, and habeas corpus jurisdiction must be sparingly exercised. By entertaining the present writ petition despite the subsistence of a valid guardianship decree in favour of the father, the Hon'ble High Court exceeded its jurisdiction under Article 226 of the Constitution.
7. That even otherwise, the father being the natural guardian under Mohammedan Law after the child crosses the age of seven years (Mulla's Principles of Mohammedan Law, Section 352), his custody of the 8-year-old child cannot be termed -illegal. The Hon'ble Supreme Court in Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6 has held that a father, being the natural guardian, cannot be charged with kidnapping or treated as an unlawful detainer when he takes custody of his minor child in good faith.
Section 357 (Mulla's Principles of Mohammedan Law) talks about the right of father and paternal male relations custody of boy over seven years. The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty.
8. Furthermore, the custody with the father is not only lawful but protective. Documentary evidence, including medical records dated 21.01.2025, 25.01.2025, and 12.02.2025, as well as Zero FIR dated 30.01.2025 under the POCSO Act, reveal that the minor was subjected to physical and sexual abuse while at the maternal home. The Child Welfare Committee, Hooghly, taking cognizance of this, passed an order dated 04.12.2024 granting interim custody to the father and later, on 04.02.2025, appointed a Support Person under the POCSO framework to assist the child. Such statutory proceedings under the JJ Act and POCSO Act are binding and negate any presumption of illegality.
9. It is well settled that the existence of an alternative efficacious remedy bars recourse to habeas corpus. The mother, if aggrieved by the guardianship order dated 11.03.2025, has a remedy of appeal under Section 47 of the Guardians and Wards Act, 1890. Instead of availing that statutory remedy, she has resorted to habeas corpus, which amounts to circumventing the scheme of law. The writ is therefore not maintainable.
8. That this Hon'ble Court has repeatedly held that habeas corpus petitions are summary in nature and are not meant for detailed adjudication of custody rights, which require examination of welfare, evidence, and circumstances. In Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, the Hon'ble Supreme Court observed that where a detailed enquiry is necessary, the writ court must decline jurisdiction and direct parties to approach the proper guardianship forum.
9. The territorial jurisdiction of the Hon'ble High Court of Allahabad at Lucknow is also in serious doubt. The minor child has been continuously residing with the father in Hooghly, West Bengal, since July 2024, and is admitted in Dreamland School there. Article 226 jurisdiction can only be exercised where the person or subject matter of detention is within territorial reach. The ratio of Ruchi Majoo (supra) reinforces that unless the detenue is within territorial jurisdiction, the writ cannot be entertained.
10. The Hon'ble High Court has further erred in passing orders which are inconsistent with the subsisting orders of the Child Welfare Committee, Hooghly, a statutory body under Section 27 of the JJ Act, 2015. The CWC has granted custody to the father and directed protective measures.
Unless those orders are set aside in accordance with law, they cannot be nullified by parallel habeas corpus directions.
11. In Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67,the Supreme Court clarified that habeas corpus is maintainable even when custody is with a parent, but only where it is proved that the custody is illegal or harmful. In the present case, custody is with the natural guardian, supported by decree, statutory orders, and medical necessity. Thus, the writ jurisdiction cannot be invoked to override these lawful foundations.
12. Therefore, in the facts and circumstances, the present habeas corpus petition is misconceived and not maintainable. The remedy for the mother lies only in challenging the guardianship decree through appeal under the 1890 Act or approaching the CWC through proper procedure, not by invoking the extraordinary writ jurisdiction and that also in a different jurisdiction.
13. That even under criminal law, Section 137 BNS (equivalent to S. 361 IPC) provides exceptions where a parent or lawful guardian takes a child out of another's keeping in good faith, believing himself to be entitled to lawful custody. The father's act of rescuing his son from imminent harm falls squarely within this protective exception. It cannot be branded as kidnapping or unlawful detention.
14. The subsequent proceedings under the Juvenile Justice Act, 2015 and the POCSO Act, 2012 further vindicate this protective role. The Child Welfare Committee, Hooghly, after due consideration, passed an order on 04.12.2024 granting custody to the father and appointed a Support Person on 04.02.2025 to safeguard the child under POCSO. These statutory measures are a recognition that the child was in need of care and protection and that the father rightly assumed custody to shield him from danger.
15. That this is not a case of "detention" at all. It is a case of rescue and protection. The father acted as any conscientious parent would-placing the child's safety above all else. In the eyes of law, such an act is not only excusable but is positively mandated, for the father is the natural guardian under Mohammedan law once the child crosses the age of seven years. The minor being 8 years old, custody with the father is the natural and lawful course.
16. Consequently, when the custody is protective, lawful, and welfare-oriented, the extraordinary writ of habeas corpus is not maintainable. The Hon'ble High Court, in insisting on physical production, has failed to appreciate that the child's presence with the father is not a matter of confinement but of sanctuary. It is further apt to mention herein that the Hon'ble Supreme Court vide its order dated 22.09.2025 has categorically stated that in the event if the court requires the minor child to be present before the court in such event it shall be virtually only and not in person. Qua the whereabouts and safety of the minor child this Hon'ble is now aware hence the present petition may be dispose of by considering the legal aspect whether the present writ is maintainable."
9. In support of his submissions, learned counsel for the opposite party No. 4 has placed reliance on the following judgments:-
(a) Chandrakala Menon (Mrs.) and another v. Vipin Menon (Capt.) and another, (1993) 2 SCC 6.
(b) Granth Verma v. State of U.P. and others, 2022 SCC OnLine All 1315.
(c) Mirah Pandey and another v. State of U.P. and others, 2023 SCC OnLine All 240.
(d) Somprabha Rana and others vs. State of Madhya Pradesh and others, (2024) 9 SCC 382.
(e) Vivek Kumar Chaturvedi and another v. State of U.P. and others, (2025) 4 SCC 342.
(f) Mayank Ojha (Minor) v. State of U.P. and others, 2025 SCC OnLine All 6064.
(g) Judgment dated 30.09.2022 passed by the High Court of Gujrat at Ahmedabad in R/Special Criminal Application No. 9903 of 2021.
(h) The order dated 10.02.2025 passed in Writ Petition No. 3487 of 2025.
(i) Order dated 01.03.2023 passed in WPA (H) 13 of 2023.
(j) Judgment dated 06.10.2023 passed in Criminal Application No. 552 of 2023.
(k) The order dated 02.08.2022 passed by this Court in Habeas Corpus Writ Petition No. 486 of 2022.
10. Upon due consideration of the aforesaid, this Court is of the firm view that the finding(s) recorded by this Court in the order dated 12.12.2024 regarding taking custody of minor/detenue, which was taken after dismissal of HABEAS CORPUS WRIT PETITION No. 880 of 2023 (Master Mahib Sajjad Masood And Another vs. State Of U.P. And 10 Others) filed by the opposite party No. 4/Sajjad Hasan Masood (father of minor) vide order dated 29.01.2024 according to which the minor was with his mother till 28.01.2024, are intact till date. Thus, to the view of this Court, the order dated 11.03.2025 passed by the District Court at Hooghly in Guardianship Case No. 99 of 2024, filed after taking forcible custody of minor, would not be having binding effect over this Court.
11. Accordingly, the instant petition, to the view of this Court, is liable to be allowed. It is accordingly allowed. The side opposite is directed to handover the custody of detenue to the petitioner forthwith. This Court provides visitation rights to the side opposite. Accordingly, side opposite is permitted to meet the minor on each Sunday between 10.00 A.M. to 4.00 P.M.
(Saurabh Lavania,J.)
November 13, 2025
Arun/-
