Dismissed

Rachhit Pandey (Minor) and Another v. State of U.P. and 3 Others

Allahabad HC11 Jan 2021HABC/193/2020

Case brief

AI extract

What is this about?

The High Court dismissed a habeas corpus petition filed by a father seeking visitation rights and claiming unlawful detention of his minor son residing with the mother. The court held that since the mother is the natural guardian caring for the child under five, custody is presumed lawful, and the matter falls outside habeas corpus jurisdiction as ordinary family court proceedings are pending.

What the court decided

AI extract

Rachhit Pandey (Minor) and Another Vs State… — Child Custody and Guardianship | Allahabad HC (2021)

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AFR

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Court No. - 84

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Case :- HABEAS CORPUS WRIT PETITION No. - 193 of 2020 Petitioner :- Rachhit Pandey (Minor) And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dharmendra Kumar Yadav, Kailash Singh Yadav

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Counsel for Respondent :- G.A., Satyendra Singh

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Hon'ble Dr. Yogendra Kumar Srivastava,J.

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Heard Sri Dharm Pal Yadav, learned counsel for the petitioners, Sri Vinod Kant, learned Additional Advocate General alongwith Sri Sanjay Sharma, learned Additional Government Advocate appearing for the State-respondents and Sri Satyendra Singh, learned counsel for the respondent no.4.

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The present petition has been filed for a writ of habeas corpus praying for the following reliefs:-

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"(i) issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce the corpus before this Hon'ble Court and the petitioner no.1 be allowed to remain in the company of the petitioner no.2.

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(ii) issue a writ, order or direction commanding the respondents to resolve the matrimonial dispute, if any, by amicable dialogue, mediation or court expeditiously and the visiting rights be granted to the petitioner no.2 as he is being denied access to meet his child.

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(iii) issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

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(iv) award cost of the petition to the petitioners."

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The order sheet of the case indicates that at the very outset when the case was taken up on 27.02.2020, learned counsel for the petitioners submitted that the petitioner no.2 did not want the custody of the corpus i.e. the petitioner no.1 and that he was pressing the petition only for visitation rights. The aforementioned contention as noticed in the order dated 27.02.2020 is as follows:-

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“Learned counsel for the petitioners at the very outset

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submitted that petitioner no. 2 does not want the custody of corpus, petitioner no. 1 as he is in the custody of his mother, respondent No. 4, but being father of corpus, he is only pressing this petition for visitation right.”

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The order sheet further indicates that the only dispute which is being agitated in the present case is with regard to the claim set up by the petitioner no.2 for visitation rights.

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As per the case set up in the petition, the petitioner no.2 claims to have married the respondent no.4 on 24.02.2014 and thereafter a male child i.e. the petitioner no.1 was born on 17.06.2016. Soon thereafter, sometime in October, 2016 the respondent no.4 (wife) is stated to have deserted the petitioner no.2 and went to her parental home. Since then she is stated to have never returned to her matrimonial home.

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It is contended that the petitioner no.2 and the respondent no.4 are living separately since October, 2016 and that the petitioner no.1 i.e. the minor son is in the custody of his mother i.e. respondent no.4. An application, under Section 9 of the Hindu Marriage Act, 1955¹ , seeking restitution of conjugal rights is stated to have been filed by the petitioner no.2 (husband) on 13.03.2019 and the same is said to be pending before the Principal Judge, Family Court, Kanpur Nagar. The petitioner no.2 by means of the present petition has sought to raise a claim with regard to custody of the minor son and also visitation rights.

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The respondent no.4, wife, has filed her personal affidavit dated 16.12.2020 wherein it is averred that she has filed a divorce suit under Section 13 of the HMA before the Principal Judge, Family Court, Azamgarh being Divorce Suit No.874 of 2020 (Kavita v Rohan Pandey), which is pending and the next

1 the HMA

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date fixed in the case is 08.02.2021. It is also submitted that the petitioner no.1, minor son, is living with his mother i.e. respondent no.4 who is his lawful guardian and that the minor son cannot be said to be in any kind of illegal custody or detention and, accordingly, the present habeas corpus petition is not maintainable and is liable to be dismissed.

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Parties have exchanged pleadings. With the consent of parties the petition is taken up for disposal.

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Learned Additional Advocate General appearing for the State-respondents submits that the facts of the present case show that the petitioner no.2 and the respondent no.4 admittedly are living separately and the petitioner no.1 i.e. the minor son is in the custody of his mother and in view of the aforesaid, and in particular there being no pleading with regard to any kind of illegal custody, the present petition which has been filed for a writ of habeas corpus, would not be maintainable.

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Counsel for the petitioners fairly submits that the only prayer that he seeks to press in the present petition is in respect to the relief regarding grant of visitation rights.

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The counsel for the contesting respondent no.4 submits that since the relief sought in the present petition is confined to grant of visitation rights and proceedings relating to matrimonial disputes between the parties are pending before the Family Court, the present petition seeking a writ of habeas corpus would not be entertainable.

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The fact with regard to the petitioner no.2 and respondent no.4 (i.e. the husband and wife) living separately since October, 2016 is undisputed. It is also an admitted fact that divorce proceeding between the husband and the wife is pending before

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the Family Court and that the petitioner no.1 who is a minor aged about four years is presently in the custody of his mother. It is also the admitted position between the parties that the petitioner no.1 (minor son) who was born on 17.06.2016, has continuously stayed with his mother since October, 2016, when she is stated to have left her matrimonial home.

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The order dated 27.02.2020 passed by this Court indicates that the petitioner no.2 i.e. the husband never sought the custody of the corpus and at the very outset it was stated on behalf of the said petitioner that since the minor son is in the custody of his mother he was only making a prayer for grant of visitation rights.

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The writ of habeas corpus is a prerogative writ, an extraordinary remedy, evolved under the common law and incorporated in our constitutional law, having the objective to protect and safeguard individual liberty.

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In “Judicial Remedies in Public Law”² , the writ of habeas corpus has been described as follows:-

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“The writ of habeas corpus is a writ of right but not of course. This means that the applicant has to show a prima facie case that he is being unlawfully detained.”

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The above principle with regard to a writ of habeas corpus being a writ of right and not a writ of course and that it may be granted only on reasonable ground or probable cause being shown, has been reiterated in Mohammad Ikram Hussain v State of U.P. and others³ , Kanu Sanyal v District Magistrate Darjeeling⁴ .

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The nature and scope of writ of habeas corpus was

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2 Judicial Remedies in Public Law by Clive Lewis, 3^rd Edition

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3 1964 AIR 1625

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4 (1973) 2 SCC 674

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considered in the case of Kanu Sanyal (supra) and the Supreme Court after tracing the development of the writ of habeas corpus by Common-Law Courts in England held that the writ of habeas corpus is essentially a procedural writ dealing with the machinery of justice but not the substantive law with an object to secure release of a person who is illegally restrained of his liberty.

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The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

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In the case of detention of a child or a minor the only person competent to move the court for a writ of habeas corpus would be one who is entitled to the custody of the child.

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In the instant case, the minor child, soon after his birth, and ever since he was infant of four months, has been in the custody of his mother (respondent no.4), who has admittedly left her matrimonial home and is living separately.

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The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890⁵ and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed under the aforesaid enactment.

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Looking to the subject nature of disputes concerning the family and the need to adopt an approach radically different from that adopted in an ordinary civil proceeding, the Family

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5 the GWA

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Courts Act, 1984⁶ was enacted for establishing family courts for speedy settlement of family disputes and the jurisdiction in respect of suits and proceedings relating to matrimonial matters and also relating to guardianship and custody of a minor is vested in the family courts.

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The Hindu Minority and Guardianship Act, 1956⁷ was enacted to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act is supplemental to the Guardians and Wards Act, and in terms of Section 2 thereof its provisions are in addition to and not in derogation to the Guardians and Wards Act.

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The petitioner no.1 (minor son) is about four and half years of age and in terms of Section 6(a) of the HMGA the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

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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.

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An application for restitution of conjugal rights filed by the petitioner no.2 (father) under Section 9 of the HMA and also a petition filed under Section 13 of the HMA, by the respondent no.4 (mother), are stated to be pending between the parties.

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The subject matter relating to custody of children during the pendency of the proceedings under the HMA is governed in

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6 the FCA

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7 the HMGA

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terms of the provisions contained under Section 26 thereof. The aforesaid section applies to “any proceeding” under the HMA and it gives the power to the court to make provisions in regard to: (i) custody, (ii) maintenance, and (iii) education of minor children. For this purpose the court may make such provisions in the decree as it may deem just and proper and it may also pass interim orders during the pendency of the proceedings and all such orders even after passing of the decree.

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The provisions under Section 26 of the HMA were considered in Gaurav Nagpal v Sumedha Nagpal⁸ , and it was held as follows:-

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“Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.”

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In the case at hand, proceedings under the HMA being pending between the parties before the Family Court, the jurisdiction of the court under Section 26 may be invoked for seeking orders with regard to custody of the minor and the relief in respect of visitation rights.

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The court where the aforesaid proceedings are pending would be empowered to pass all such orders and make provisions with regard to custody and grant of visitation rights, from time to time, in discharge of its duty relating to the care and custody of the minor keeping in view what would best serve the interest of the child.

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The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan v State (NCT of Delhi)

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8 (2009) 1 SCC 42

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and another⁹ , and it was held that 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.

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In the context of the facts of the case, it was noted that the private respondent therein being the biological mother of the minor and a natural guardian, it could be presumed that the custody of the minor with his/her mother was lawful, and in such a case only in an exceptionable situation the custody of the minor may be ordered to be taken away from the mother for being given to any other person including the father of the child, in exercise of writ jurisdiction. The observations made in the judgment in this regard are as follows:-

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"44. ...The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court. On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person’s freedom and his release when the detention is found to be unlawful.

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In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana (2001) 5 SCC 247, has held that the principal duty of the Court is to ascertain whether the custody of child is unlawful or 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. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42, it is held that in such cases the matter must be decided not by reference to the legal rights of

9 (2017) 8 SCC 454

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the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court (see Paul Mohinder Gahun Vs. State (NCT of Delhi) & Ors. 2004 SCC OnLine Del 699, relied upon by the appellant). It is not necessary to multiply the authorities on this proposition. x x x

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In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child."

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In the aforesaid judgment, the view taken in an earlier decision in the case of Sayed Saleemuddin v Dr. Rukhsana and others¹⁰ , was taken note of. In the case of Sayed Saleemuddin (supra) while deciding the scope of a habeas corpus petition seeking transfer of custody of children from father to mother it was held that in such cases the principal consideration for the court would be to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of some one else. It was stated thus:-

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“11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in

10 (2001) 5 SCC 247

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care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court...”

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The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others v Shekhar Jagdish Prasad Tewari and others¹¹ and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows:-

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"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. x x x

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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.

11 (2019) 7 SCC 42

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In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the 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."

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It is therefore seen that in an application seeking a writ of habeas corpus for custody of a 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 the welfare of the child 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 the child presently is.

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It is well settled that in matters of custody the welfare of child would be of a paramount consideration and the role of the court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction .

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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,

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would be qualified only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

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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 court.

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In the facts of the present case, the respondent no.4 alongwith her minor son who was an infant of about four months (at that relevant point of time i.e. in October, 2016), is stated to have left her matrimonial home and since then the minor is said to be in the custody of his mother.

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The two parents are admittedly living separately since the time that the respondent no.4 is stated to have left her matrimonial home, and matrimonial disputes are pending between the parties, in the form of an application filed by the petitioner no.2 seeking restitution of conjugal rights under Section 9 of the HMA and the respondent no.4 (wife) seeking a divorce by filing a petition under Section 13 of the HMA.

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Admittedly, the relief sought in the present writ petition is restricted to a claim for visitation rights.

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The petitioner no.1, who is presently less than five years of age, is stated to be exclusively in the care and custody of his mother, ever since he was an infant of four months of age.

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In terms of the provisions under Section 6(a) of the HMGA, the custody of a minor who has not completed the age of five years is to be ordinarily with the mother, and in view thereof the custody of the petitioner no.1 (minor son) with the respondent no.4 (mother) prima facie cannot be said to be illegal.

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A writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child.

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Insofar as a claim with regard to visitation rights is concerned, it is always open to the parties concerned to avail the remedy by moving an appropriate application before the Family Court where proceedings with regard to the matrimonial disputes between the parties are stated to be pending.

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It is made clear that the observations made, herein above, are prima facie in nature and the same are without prejudice to the rights and contentions of the parties, which may be agitated in the proceedings before the court below.

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Having regard to the aforesaid, this Court is not inclined to exercise its extraordinary prerogative jurisdiction for issuance of a writ of habeas corpus, in the facts of the case.

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The writ petition stands accordingly dismissed. Order Date :- 11.1.2021 Shahroz

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(Dr. Y.K. Srivastava,J.)

Rachhit Pandey (Minor) and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What the court decided

Rachhit Pandey (Minor) and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What the court decided

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