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2023 DIGILAW 1458 (ALL)

Aqib Alias Prince v. State Of U. P.

2023-05-26

SUNITA AGARWAL, VIKAS BUDHWAR

body2023
JUDGMENT : This intra-court appeal is directed against the order of the learned Single Judge in habeas corpus writ petition filed by the mother of the child aged about two and a half years, directing to handover the custody of the corpus (minor female child) to the petitioner namely mother of the child. 2. There is no dispute about the fact that a female child named as Baby Amaryra @ Inaya was born was 23.7.2020 out of the wedlock. There was some matrimonial dispute going on between the parties and the petitioner namely the mother of the child was living in her paternal house prior to the birth of the child. It is also an admitted fact that the minor girl child was removed from the custody of mother on 11.12.2022, though it is sought to be submitted by the learned counsel for the appellant namely the father of the child that the mother of the child namely the petitioner had willingly given custody of the minor girl child to the appellant. Various allegations are sought to be made against the petitioner namely the mother of the child stating that she was not in a position to take care of the minor girl child. The child was not living with the mother rather she was left to be looked after by her grand-mother. 3. In any case, the dispute between the husband and wife or the allegations and counter allegations made by them against each other are not concern of this Court and the Court is concerned only with the welfare of the minor child who is a girl child. 4. It is an admitted fact of the matter and is also evident from the material on record that a girl child of about two and half years old who was living with her mother since the date of her birth has been removed from the custody of her mother. 5. In our considered opinion, removal of the minor girl child from the custody of her mother not only have a delirious effect on the mental and physical well being of the child but has concern about the safety of the child. 6. 5. In our considered opinion, removal of the minor girl child from the custody of her mother not only have a delirious effect on the mental and physical well being of the child but has concern about the safety of the child. 6. In the said scenario, we are not convinced with the argument of the learned counsel for the appellant that the custody of the child with the father since after 11.12.2022 cannot be said to be illegal and the learned Single Judge has committed an error of law in issuing direction for handing over the custody of the child to the mother, beyond the scope of the habeas corpus petition. 7. It is apparently clear that the father of the minor girl child had illegally obtained the custody of the child as there is nothing on record that the custody was handed over to the father in any legal proceeding. 8. Reliance placed on the various decisions of this Court namely Habeas Corpus Writ Petition No.632 of 2021 (Sushil Kumar Tiwari and 4 others vs. State of U.P. and 5 others), Habeas Corpus Writ Petition No. 467 of 2021 (Vahin Saxena (Minor Corpus) and another), Habeas Corpus Writ Petition No.716 of 2020 (Shradha Kannaujia (Minor) and another vs. State of U.P. and 5 others), therefore, is of no help to the appellant. 9. We do not find any infirmity in the order impugned. 10. The appeal is dismissed being devoid of merit. It goes without saying that visitation right already granted to the appellant herein will not be affected by the dismissal of this appeal.