This habeas corpus petition was dismissed. The court held that a detailed inquiry was required for custody matters. Followed earlier precedent directing parties to civil courts for such enquiries, though petitioner was allowed to leave freely.
Petitioner allowed to go back to the place from where they came or wherever they desire.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 85
Case :- HABEAS CORPUS WRIT PETITION No. - 228 of 2021
Petitioner :- Km. Shweta And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rajendra Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the petitioners and learned A.G.A. for the State.
This writ petition has been filed with the following prayer :-
(i) Issue a writ, order or direction in the nature of Habeas Corpus commanding the respondent no.2 and 3 to produce the corpuses (petitioner no.1 to 3) before this Hon'ble Court and ensure the safety and security of life and liberty of Petitioner No.1 to 3/corpuses.
(ii) Issue a writ, order or direction to directing the respondents to release the petitioner No.1 to 3/ Corpuses from the illegal custody of respondent no.4 and handover the petitioner No.1 to 3 (Corpuses) to petitioner No.4.
(ii) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
(iii) Award the cost of petition in favour of the petitioners.
In pursuance of order dated 14.9.2021 the corpuses are present before this Court who are brought by Sub-Inspector, Shri Devendra Kumar Pal.
Petitioner No.1 states that her name is Sweta Rajbhar and her father's name is Haricharan Rajbhar. She is living along with her father since she was 8 years old. She also states that her father is of loving nature and her mother always used to go to her parental house. She also states that there is no threat to her life.
Petitioner No.3 states that his name is Saurabh Rajbhar and his age is about 11 years. He states that the mother always goes to her parental house. There is no threat to him or any danger to his life. He also states that he wants to live with both mother and father.
Petitioner No.2 states that his name is Gaurav Rajbhar and his age is about 12 years. He states that he studies in class-6. His
father do not ill-treat with him. His mother used to go to her parental house.
All the corpuses (petitioner no.1 to 3) states before the court that they want to live with their father and not with mother.
On the other hand petitioner no.4 states that she is a anganwadi karyakatri and earns approx. 5,500/- rupees per month and is able to handle the upbringings of her children.
Learned A.G.A. has vehemently opposed the submissions made by learned counsel for the petitioners and placed reliance upon the judgement of Hon'ble Supreme Court in the case of (Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others (2019) 7 SCC 42) in which it has been held as under :-
"20. 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."
Learned A.G.A. has opposed the contention raised by learned counsel for the petitioners and submits that from perusal of this judgement paragraph 20 of the judgement clearly states that the writ of habeas corpus can be revoked only in extraordinary circumstances. The judgement also transpires that for the paramount welfare of the ward, the other things are also considered and in the present case the welfare of the child is to be examined, so at this stage the detailed consideration is required and the judgement itself says that in such cases where the court is of the view that detailed inquiry is required the Court may decline to exercise the extraordinary jurisdiction and direct the party to approach the civil court.
Considering the above facts and circumstances of the case and in the light of judgement passed by this Court in the case of
Habeas Corpus Writ Petition No.615 of 2021 (Master Parth Minor And Another Vs. State Of U.P. And 3 Others) this writ petition stands dismissed .
The petitioner nos. 1 to 3 would be at liberty to go back to the place from where they have come or wherever they desires. Order Date :- 21.9.2021 shiv
1 issue framed by the court
Whether the writ court should exercise extraordinary jurisdiction to determine custody rights in this case.
Colour shows how this judgement treated each authority
Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and OthersReferred¶18
Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others (2019) 7 SCC 42 · Who else cites this
Km. Shweta And 3 Others
State Of U.P. And 3 Others
Petitioner No.4
Gautam Chowdhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
