Master Shivansh Mishra, Thru. His Father… — Child Custody and Guardianship | Allahabad HC (2025)

Master Shivansh Mishra, Thru. His Father… — Child Custody and Guardianship | Allahabad HC (2025)

What the court decided

AI extract

Outcome

Writ petition dismissed; however, the petitioner's visiting rights granted vide order dated 13.05.2024 shall continue till the decision of the parties' respective custody rights in the pending Family Court case.

Issue for consideration

Whether the corpus of the minor detenue Shivansh Mishra, held by opposite party no.4 (grand-parents) after the death of the child's mother, should be produced before this Court and custody handed over to petitioner-father Vishnu Kumar Mishra as natural guardian via habeas corpus writ. +1 more

Court's answer

Because the child is of tender age, was kept by his grand-parents after the mother died during treatment just after delivery, cannot recognise his father, and would be placed in a miserable condition if custody were shifted, custody of the child cannot be transferred in favour of the petitioner (father) at this stage.

Ratio / Principle

The respective rights of the parties regarding custody remain to be finally decided and fall to be adjudicated by the learned court of Principal Judge, Family Court, where the Misc. Case in that regard is still pending.

Key takeaways

In view of the observation of the Hon'ble Supreme Court in para no.11 of the judgment in Somprabha Rana vs. State of Madhya Pradesh, this Court held that the petition lacks merit and is liable to be dismissed.ratio¶12
Notwithstanding dismissal of the writ petition, the visiting rights earlier granted to the petitioner vide order dated 13.05.2024 shall continue until the respective rights of the parties relating to custody of the child are decided in the pending Family Court case.ratio¶13

Detailed headnote1 paragraphs

Habeas Corpus Writ Petition No. 94 of 2024 (Allahabad High Court, Lucknow Bench; Subhash Chandra Sharma, J.; decided 14.2.2025): The petitioner-father, Vishnu Kumar Mishra, sought production and handing over of the corpus of his about-one-year-old son, Master Shivansh Mishra, from the grand-parents (opposite party no.4), the mother having died during treatment just after delivery. Respondents' counsel contended the custody dispute belongs before the competent court under The Guardians and Wards Act, 1890, where an application stands pending as Misc. Case No.102/2023 before the Principal Judge, Family Court, and relied on the Supreme Court's observation in Somprabha Rana vs. State of Madhya Pradesh, 2024 (10) Scale 265. The Court held that the child of tender age cannot recognise his father and that transferring custody from the grand-parents would create a miserable condition for the child; custody was accordingly not transferred at this stage, the respective rights being left to the pending Family Court proceedings. In view of para no.11 of the cited Supreme Court judgment, the petition lacked merit and was dismissed, with the petitioner's visiting rights granted on 13.05.2024 ordered to continue till decision of the custody rights in that case.

Neutral Citation No. - 2025:AHC-LKO:9612

Court No. - 14

Case :- HABEAS CORPUS WRIT PETITION No. - 94 of 2024

Petitioner :- Master Shivansh Mishra, Thru. His Father Vishnu Kumar Mishra Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others

Counsel for Petitioner :- Desh Deepak Verma Counsel for Respondent :- G.A.,Anil Kumar Mishra,Krishna Kumar Tiwari

Hon'ble Subhash Chandra Sharma,J.

Heard learned counsel for the petitioner as well as learned counsel for the opposite party no.4 alongwith learned A.G.A. for the State and perused the material on record.

The present writ petition has been filed with prayer to issue writ, order or command in the nature of HABEAS CORPUS commanding the opposite parties to produce the corpus of detenue namely Shivansh Mishra at the earliest before this Court from illegal custody of opposite party no.4 and hand him over to the petitioner so that petitioner being father and natural guardian my have his custody.

It is submitted by learned counsel for the petitioner that in this case he is the father of the child Master Shivansh Mishra who is aged about 1 year and 24 days. The child is living with his grand-parents just after death of his mother during the course of treatment subsequent to delivery. Further submitted that the child is not being looked after properly by his grand-parents, therefore, requested to hand over the custody of the child to the petitioner as being father and natural guardian while directing the parties to produce the Corpus/detenue before this Court.

Learned counsel for the opposite party no.4 as well as learned A.G.A. contended that in this case child is of tender age and in case his custody is transferred to the petitioner, the child will come in miserable state. Further contended that the matter of custody is to be decided before the competent court under the provisions of The Guardians and Wards Act, 1890. Further contended that an application under the aforesaid Act is still pending before the learned Principal Judge, Family Court as Misc. Case No.102/2023 in which rights of the parties are to be decided finally. The visiting right was also given to the

petitioner by this Court by order dated 13.05.2024. Learned counsel for the opposite party no.4 also relied his argument on the observation of the Hon'ble Supreme Court as made in the case of Somprabha Rana vs. State of Madhya Pradesh 2024 (10) Scale 265.

Considering the facts and circumstances of the case, submissions made by learned counsel for both the parties and the tender age of the child, it appears that in this case mother of the child died during the course of treatment just after delivery and child was kept by his grand-parents. The child cannot recognize his father as being in tender age and in case custody is transferred from the grand-parents to his father it will surely create miserable condition with the child, therefore, custody of child cannot be transferred in favour of the petitioner at this stage and their respective rights can also be decided before the learned court of Principal Judge, Family Court where Misc. Case in this regard is still pending. In view of the observation of the Hon'ble Supreme Court in para no.11 of the aforesaid judgment, this Court is of the view that this petition lacks merit and is liable to be dismissed.

Accordingly, this writ petition is dismissed . However, the visiting rights of the petitioner as given by this Court vide order dated 13.05.2024 shall continue till the decision of respective rights of parties relating to the custody of child in the aforesaid case.

Order Date :- 14.2.2025 Ashok Gupta

Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench