Petitioners sought habeas corpus relief for their minor child detained by the father. The court examined the Tejaswini Gaud precedent regarding parental detention but found the petition lacked merit and dismissed it.
None. The petition for habeas corpus was dismissed.
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. - 610 of 2022
Petitioner :- Akagra Gupta (Minor) And Another Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Shashank Tripathi,Kumar Dhananjay Counsel for Respondent :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the petitioners learned A.G.A. and perused the record.
This Habeas Corpus petition has been filed with the following prayers:-
(A) Issue a writ order or direction in the nature of Habeas Corpus directing the respondent nos. 4 and 5 to produce the petitioner No. 1 before this Court.
(B) Issue a writ order or direction in the nature of Mandamus directing the respondents to release the petitioner No. 1 from the illegal detention of the respondent nos 4 and 5 and to hand over the petitioner no. 1 to his mother-petitioner No. 2.
(C) Issue any other suitable writ, order or direction which this Hon'ble Court may deem it fit and proper under the circumstances and fact of the case
(D) Award the cost of the petition to the petitioners.
It is contended by learned counsel for the petitioners that the mother of petitioner no. 1 was being regularly victimized by her in-laws for want of dowry and other demands. Ultimately she was kicked out from her matrimonial home on 26.5.2022, but her son/petitioner no. 1 was detained by the respondent no. 4 and 5 , therefore the petitioner no. 2 lodged an F.I.R No. 559 of 2022 at police Station Khurja Nagar, Bulandshahr against respondent nos. 4 and 5. It is further argued that respondent no. 4 is claiming to brake up all the relations with her but the said story has been developed only in order to mislead the investigation while the respondent no. 4 is still living with his family along with the respondent no. 5, where they have illegally detained an innocent minor. It is next argued by learned counsel for the petitioners that the petitioner no. 2 has already approached the concerned authorities but there is no action by them and lastly argued that petitioner no. 1 is only aged about two years and at this stage, his mother is the prime and natural guardian but he has been taken away from the custody of his other. It is also stated that under the Hindu Minority and Guardian ship Act a father can be the guardian
of the property of the minor child but not the guardian of his person, if the child is less than five year old. The custody of a child less than five years of age should ordinarily be with the mother and this exception can be deviated from only for strong reason. Learned counsel for the petitioners has also placed the reliance for maintainability of this Habeas Corpus petition in the case of (Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and other).
In reply of the above contention, it is submitted by learned A.G.A. for the State that from the perusal of the record it does not transpire that it is case of illegal detention of a minor boy, there is dispute between husband and wife and it can be settled before the appropriate forum. So far as the citation placed for maintainability of this Habeas Corpus petition is concerned, in the case of Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and other is , same has been decided in paragraph no. 12 of the order, which is quoted below:.
12. 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 vs. Shekhar Jagdish Prasad Tewari and others5, 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:-
"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.
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.
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."
From a perusal of the facts and circumstances of the case and the contention which has been been raised by the counsel for the petitioners with regard to the mother's claim for custody, made herein are prima facie in nature and the same are without prejudice to the right and contention of the parties, which may be agitated in proceedings before he appropriate forum
The petition lacks merit, is liable to be dismissed and is, accordingly dismissed.
Order Date :- 6.9.2022
RPD
Digitally signed by RATAN PRAKASH DWIVEDI Date: 2022.09.12 12:39:32 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether a habeas corpus petition for the custody of a minor is maintainable when there is a dispute between parents regarding custody.
Whether the detention of a minor by a parent is illegal and without authority of law under the facts of this case.
Whether this petition should be tried as a custody dispute before a civil forum or decided summarily by the writ court.
Colour shows how this judgement treated each authority
Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and othersFollowed¶12
Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and other
Akagra Gupta
Mother of Petitioner No. 1
State Of U P
Gautam Chowdhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
