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2024 DIGILAW 1350 (ALL)

Shiv Singh Minor v. State of UP

2024-05-17

YOGENDRA KUMAR SRIVASTAVA

body2024
JUDGMENT : (Dr. Yogendra Kumar Srivastava, J.) : 1. Heard Sri Akshay Raghuvanshi, learned counsel for the petitioners and Sri Pankaj Saxena, learned AGA-I appearing for the State-respondents. 2. Pleadings in the petition indicates that the respondent no.5, wife of the petitioner no.2, went back to her maternal home, on 10.08.2018, shortly after her marriage with the petitioner no.2, on 03.05.2018. The respondent no.5 is stated to have been pregnant at that point of time, and she was blessed with a baby boy on 11.01.2019. 3. It is submitted that during this period, the respondent no.5 throughout stayed at her maternal home, and the child was born during the period of her stay at her maternal home. 4. It has also been pleaded that the respondent no.5, after birth of the petitioner no.1 (corpus), stayed at her maternal home, and the child has been under her custody continuously. 5. A case is sought to be set up that the petitioner no.2, father of the petitioner no.1, attempted to meet his son on a number of occasions, but has not been permitted to do so by his father-in-law, respondent no.4. 6. Learned AGA-I pointed out that the petitioner no.2 is stated to have left her matrimonial home, in the month of August, 2018, and thereafter, the petitioner no.1 (corpus) was born on 11.01.2019, while the mother was at her maternal home, and since then the infant is continuously under the custody of her mother; accordingly, the custody of the petitioner no.1 (corpus), a minor child, with his mother, cannot, prima facie, be stated to be illegal and the present petition seeking a writ of habeas corpus would not be entertainable. 7. Counsel for the petitioner has sought to controvert the aforesaid assertion by placing reliance upon a decision in Master Prakhar @ Palash and another Vs. State of UP and others, (2022) ILR 5 All 1459, to contend that in a child custody matter, a petition filed by a parent, seeking a writ of habeas corpus would be entertainable. 8. There can be no quarrel with the aforesaid proposition that in cases of child custody, a petition seeking a writ of habeas corpus may be entertained in a case where it is established that the custody of the child is illegal or without authority. 8. There can be no quarrel with the aforesaid proposition that in cases of child custody, a petition seeking a writ of habeas corpus may be entertained in a case where it is established that the custody of the child is illegal or without authority. There may also be cases where the custody of the child has been forcibly altered, which renders the present custody illegal, and in the said circumstance, the Court may be persuaded to issue a writ of habeas corpus. 9. The writ of habeas corpus, as is legally well settled, 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. 10. 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. 11. 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. 12. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is. 13. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. 13. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody. 14. The role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor. 15. In a given case, while dealing with a petition for issuance of a writ of habeas corpus concerning a minor child, directions may be issued for return of the child or the Court may decline to change the custody of the child, keeping in view all the attending facts and circumstances and taking into view the totality of the facts and circumstances of the case brought before the Court; the welfare of the child being the paramount consideration. 16. 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. 17. In the facts of the present case, it is undisputed that the respondent no.5 had left her matrimonial home soon after her marriage, and the petitioner no.1 (corpus) was born during the period of her stay at her maternal home on 11.01.2019. 18. It is also not disputed that the petitioner (corpus) has throughout been under the custody of his mother, who has continuously stayed at her maternal home, and is presently, also, staying there. 19. 18. It is also not disputed that the petitioner (corpus) has throughout been under the custody of his mother, who has continuously stayed at her maternal home, and is presently, also, staying there. 19. In a petition for a writ of habeas corpus concerning a minor child, the Court, in a given case, may direct to change the custody of the child or decline the same keeping in view the attending facts and circumstances. For the said purpose it would be required to examine whether the custody of the minor with the private respondent, who is named in the petition, is lawful or unlawful. 20. There is absolutely no material on record, which may suggest that the custody of the petitioner no.1 (corpus) was taken away by the respondent no.5, from the petitioner no.2, at any point of time. The question of the custody, therefore, being illegal, would not arise in the facts of the case. 21. In a case such as this, where the custody of the minor child is with his biological mother ever since birth and there is no material to suggest that the custody was altered illegally, at any point of time, it may be presumed that the custody of the child with his mother is not, prima facie, unlawful. 22. It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person-including father of the child, in exercise of writ jurisdiction. This would be so also for the reason that the other parent, in the present case, the father, can take resort to the substantive statutory remedy in respect of his claim regarding custody of the child. 23. In a child custody matter, a writ of habeas corpus would not be entertainable unless it is established that the detention of the minor child by the parent or others is illegal and without authority of law. 24. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate statutory forum. 25. 24. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate statutory forum. 25. Counsel for the petitioners has not disputed the aforesaid legal and factual position, and the only grievance, sought to be raised, is with regard to a claim for visitation rights on behalf of the father. 26. The petition stands dismissed accordingly. 27. Needless to say that the dismissal of the writ petition would not preclude the petitioner no.2 from agitating his right with regard to guardianship and custody, and also seeking visitation rights, by initiating appropriate proceedings before the proper statutory forum.