This court dismissed a habeas corpus petition filed by a father seeking release of his minor son from his mother's custody. The court held that custodial disputes are for civil courts to decide based on child welfare and are not suitable for extraordinary writ jurisdiction.
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Court No. - 15
Case :- HABEAS CORPUS WRIT PETITION No. - 283 of 2022
Petitioner :- Abeer Gupta Thru. Natural Guardian Ankur Gupta And 3 Others
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others
Counsel for Petitioner :- Virendra Kumar Dubey,Akhilesh Pandey,Badrish Kumar Tripathi Counsel for Respondent :- G.A.,Akhilesh Kumar Pandey
Hon'ble Subhash Vidyarthi,J.
Heard Sri Virendra Kumar Dubey, learned counsel for the petitioners, Sri Diwakar Singh, learned AGA, Sri Ram Ji Dubey holding brief of Sri Badrish Kumar Tripathi, learned counsel for opposite party no. 3.
By means of the instant petition, the petitioners have prayed for issuance of a writ of habeas corpus contending that the petitioner no. 1-Abeer Gupta aged about 9 years is being illegally detained by his mother-opposite party no. 3.
It has been pleaded in the writ petition that the petitioner no. 2 got married to opposite party no. 3 on 13.02.2011 and a son was born out of the wedlock between the parties on 08.06.2015 who has been named master Abeer Gupta. The minor Abeer Gupta is presently studying in class 2. On 27.04.2022, the opposite party no. 3 filed an FIR No. 334/2022, under Sections 498-A, 323, 504, 506, 376, 377 IPC and 3/4 D.P. Act, Police Station Chinhat, Commissionerate Lucknow (East). Prior to lodging of the aforesaid FIR, the petitioner no. 3 had lodged an FIR No. 333/2022, under Sections 323, 504 and 506 IPC, Police Station Chinhat, Commissionerate Lucknow (East). There is no mention in the petition as to when was the minor son illegally removed from the custody of the petitioners and merely this much has been pleaded in the petition that " since April 27th 2022 the petitioners are not able to meet petitioner no. 1/ward because of the opposite party no. 3, and it is also evident to mention here that opposite party no. 3 has removed petitioner
no. 1 from his ordinary place of residence ."
From the facts pleaded in the FIR, it appears that there is a matrimonial dispute between the parties because of which the opposite party ho. 3-wife has left the matrimonial home and her minor son is residing with her. A minor son residing with his mother cannot be said to be in illegal detention. Custody and other rights of a minor are to be decided keeping in view the welfare of the child, which depends upon various factors, which can only be decided by the court after giving opportunity to the parties to lead evidence in this regard. The disputed question of fact affecting welfare of the minor cannot be appropriately decided by this Court while exercising extraordinary writ jurisdiction under Article 226 of the of the Constitution of India.
In view of the aforesaid discussion, this Court is not inclined to entertain the present writ petition and it is, accordingly dismissed .
The petitioners shall be free to take recourse to the remedies available to them under law for redresal of their grievances and in case any such proceedings are initiated by the petitioners, the same shall be decided without being influenced by any of the observations made by this Court in this order.
Order Date :- 4.1.2023 Pradeep/-
Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether writ jurisdiction can be exercised to decide disputes regarding custody of a minor child between parents.
Whether a minor residing with his mother can be said to be in illegal detention.
1 provisions across 1 enactments
Abeer Gupta
Ankur Gupta
State Of U.P.
Natural Guardian Ankur Gupta And 3 Others
Prin. Secy. Home, Lko. And Others
Subhash Vidyarthi
Pradeep Singh
As recorded by the court registry
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