Mother sought habeas corpus petition to secure custody of minor daughter from estranged father during pendency of Section 498A proceedings. Court held that as father is a natural guardian, custody is not unlawful. Writ not maintainable; mother directed to approach civil court for custody.
Rule nisi discharged. Writ petition dismissed.
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Court No. - 66
Case :- HABEAS CORPUS WRIT PETITION No. - 388 of 2020
Petitioner :- Manvi @ Aarohi (Minor) Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Shams Uz Zaman Counsel for Respondent :- G.A.,Anurag Yadav,Mahendra Pratap
Hon'ble J.J. Munir,J.
Counter affidavit on behalf of respondent nos. 4 and 5, filed today, is taken on record.
This Habeas Corpus Writ Petition has been filed effectively by Smt. Monika, who is the mother of Manvi alias Aarohi, minor daughter of Smt. Monika and her estranged husband Deepak, son of Radhe Shyam, respondent no. 4 to this petition.
Admittedly, proceedings under Section 498A of Indian Penal Code, 1860 are going on between the parties, who are said to have been married on 11.05.2015. The minor was born on 24.10.2016. Presently, she is in the custody of her father. The mother, through this Habeas Corpus Writ Petition, has asked for the minor to be liberated from her father's custody and given to hers.
Heard Sri Shams Uz Zaman, learned counsel for the petitioner and Sri Anurag Yadav, learned counsel appearing on behalf of respondent nos. 4 and 5.
Upon consideration of the entire matter, this Court finds that both the mother and father are the natural guardians, under Section 6(a) of the Hindu Minority and Guardianship Act, 1956. Their right to the minor's custody stands at par. A writ of habeas corpus in custody matters can issue in cases where the minor is
in unlawful custody. It can also issue in cases where a natural guardian asks for custody of a minor from distinct kindred or close kindred, but not a natural guardian. In extreme cases, this writ has also been issued between two natural guardians, but those are rare. In a situation where it can be ex-facie demonstrated that a natural guardian has absolutely rendered himself disentitled to hold the minor's custody in the sense that the minor's welfare is not at all secure in the hands of that natural guardian, the writ may issue. On the material available on record, this Court cannot find anything to warrant a conclusion that the minor's custody is so unsafe in the father's hands that it may be termed as unlawful.
The law on this point has been elaborately laid down by the Supreme Court in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 , where it has been held :
"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
In view of the fact that the father is a natural guardian and there is nothing to show on record that holding the minor in his custody is patently unlawful, a writ of habeas corpus cannot issue, in the opinion of this Court. This, however, is not to say that the mother cannot establish her better right to custody in the interest and welfare of the minor, which is of paramount consideration before a court of competent jurisdiction under the Guardian and Wards Act, 1890. It will be open to the mother to seek such remedy in the matter, as may be advised. In the event the mother moves, the court competent under the Guardian and Wards Act, 1890 or elsewhere, as advised, the remarks in this petition shall not be construed in any way, prejudicial to her interest or affecting the merits of the matter, either way. The court of competent jurisdiction shall be absolutely free to determine the custody matter in accordance with law and going by the evidence adduced by parties.
Subject to what has been clarified above, the rule nisi issued in this matter cannot be made absolute. The rule, therefore, is discharged.
In the result, the writ petition fails and is dismissed .
Order Date :- 22.9.2020 I. Batabyal
3 issues framed by the court
Whether a writ of habeas corpus can issue to grant custody of a minor to the mother from the father who is a natural guardian.
Whether the detention of the minor by the paternal guardian is patently unlawful.
Whether the mother should be directed to seek custody through the competent civil court under the Guardians and Wards Act.
Colour shows how this judgement treated each authority
Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and othersRelied on¶11
Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 · Who else cites this
Guardian and Wards Act, 1890Referred¶15
2 provisions across 2 enactments
Manvi @ Aarohi
State Of U.P.
Deepak
Munir
As recorded by the court registry
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