Dismissed¶33

Sahil Thru. His Mother and Natural Guardian Smt. Hasratul and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Allahabad HC16 Apr 2026HABC/127/2026

Case brief

AI extract

What is this about?

Habeas corpus child custody minor children illegal detention natural guardian father welfare of child Family Court regular suit maintainability Article 226 Guardians and Wards Act 1890 Hindu Minority and Guardianship Act Section 125 CrPC maintenance Section 128 CrPC Tejaswini Gaud Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 Nirmala Kulwant Singh (2024) 10 SCC 595 Allahabad High Court Lucknow Bench HABC No. 127 of 2026 Subhash Vidyarthi J. dismissed liberty to file custody suit Sahil Tahir Hasratul Munsarif.

What did the court decide?

Writ petition dismissed, leaving it open to the petitioner to file a regular suit for claiming custody of the children before the appropriate Court. ¶33

Sahil Thru. His Mother and Natural Guardian… — Child Custody and Guardianship | Allahabad HC (2026)

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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HABEAS CORPUS WRIT PETITION No. - 127 of 2026

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Sahil Thru. His Mother And Natural Guardian Smt. Hasratul And Another

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.....Petitioner(s) Versus State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others .....Respondent(s) Counsel for Petitioner(s) : Dwijendra Prasad Gupta Counsel for Respondent(s) : G.A.

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Court No. - 14

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HON'BLE SUBHASH VIDYARTHI, J.

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Heard Sri Dwijendra Prasad Gupta, the learned counsel for the petitioner and Sri G.D. Bhatt, the learned AGA-I.

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The instant petition seeking issuance of a writ of Habeas Corpus has been filed by Master Sahil aged 5 years and Master Tahir aged 4 years through their mother Smt. Hasratul alleging that the children are in illegal custody of their father Munsarif (opposite party no. 4).

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It has been stated in the writ petition the opposite party no. 4 and his family members have expelled Smt. Hasratul from her matrimonial home and that she has filed an application under Section 125 Cr.P.C. which was allowed on 05.09.2023. When the opposite party no. 4 did not pay the amount of maintenance, she has instituted proceedings under Section 128 Cr.P.C. However, the date when Smt. Hasratul left her matrimonial home, the date when she filed application under Section 125 Cr.P.C. and the date when she filed an application under Section 128 Cr.P.C. have not been pleaded in the writ petition. The petitioner alleges that the children are in illegal custody of their father.

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HABC No. 127 of 2026

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A copy of the application under Section 128 Cr.P.C. has been annexed to the petition wherein it has been stated that she had filed an application under Section 125 Cr.P.C. on 19.11.2022 and it was allowed exparte by means an order dated 15.09.2023. From the aforesaid averments, it appears that Smt. Hasratul is living separate from her husband since before 19.11.2022. In the application under Section 125 Cr.P.C., Smt. Hasratul has impleaded the alleged detenues Sahil and Tahir also as applicant and she has stated that she is living with her children. In these circumstances, non disclosure of the dates when the children were taken away by their father. In the application given to the Superintendent of Police purportedly on 05.12.2024, Smt. Hasratul alleged that the opposite party no. 4 had taken away the children on 22.11.2024. This application was purportedly given on 05.12.2024 but it does not contain any endorsement of acknowledgment of its receipt in the office of the Superintendent of Police. Even if the averments made in this application are accepted to be true, it appears that the children are living with their father in a settled manner for the past about 1-1/2 years. Although the mother of the children has instituted proceedings before the Family Court she has not instituted any proceedings for claiming custody of the children.

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When the children are living with their father in a settled manner for a considerably long period, the custody of children with their father, who is also a natural guardian, cannot be said to be illegal detention of the children.

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The question of custody is a complicated question which can only be decided after ascertaining the welfare of the child, which would require giving opportunity to the parties to lead evidence to prove the welfare of the child and a thorough scrutiny thereof by the court, which can only be done in a regular suit by the Family Court.

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In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari :

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HABC No. 127 of 2026

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(2019) 7 SCC 42 the Hon'ble Supreme Court considered various precedents on the point and held that: -

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"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.

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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 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

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HABC No. 127 of 2026

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jurisdiction on a petition for habeas corpus."

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The aforesaid view has been followed and reiterated in Nirmala v. Kulwant Singh : (2024) 10 SCC 595, in which the Hon'ble Supreme Court held that:

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"27. ...no hard-and-fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case."

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In Nirmala v. Kulwant Singh (supra) , the Hon?ble Supreme Court further held that: -

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"29. It can thus be clearly seen that according to the case of the respondent father himself, in the peculiar facts and circumstances of the case, a family environment was required for the child especially from the grandparents and that he had placed the custody of the minor child with the appellant grandmother for taking his care. It can thus clearly be seen that it is not a case that the appellant grandmother had illegally kept the custody of the minor child. It is the respondent father who had placed the custody of the minor child with the appellant grandmother.

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30. We are of the considered view that in the peculiar facts and circumstances of the case, the High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India. Since a detailed enquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890.

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31. In any case, we are of the view that compelling a minor child at the tender age of 7 years to withdraw from the

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HABC No. 127 of 2026

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custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances."

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Accordingly, the writ petition is dismissed leaving it open for the petitioner to file a regular suit for claiming custody of the children before appropriate Court.

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April 16, 2026

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Pradeep/-

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(Subhash Vidyarthi,J.)

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Sahil Thru. His Mother and Natural Guardian Smt. Hasratul and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Case brief

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Sahil Thru. His Mother and Natural Guardian Smt. Hasratul and Another v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

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