Piyush Srivastava Thru. His Mother and Natural Guardian Milee Asthana vs State of U.P. Thru. the Prin. Secy. Home Lko. and 3 Others

Heard Shri Dwijendra Prasad Gupta and Shri Ravindra Kumar Asthana, Advocates, the learned counsel for the petitioner and Shri Ganesh Dutt Bhatt, the learned AGA for the State of U.P.

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By means of the instant petition seeking writ of habeas corpus has been filed by Master Piyush Srivastava aged about 5 years through his mother Milee Asthana stating that the child is in illegal custody of his father- Akash (the opposite party No.4).

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As per the pleadings made in the writ petition, the date of birth of the child on 07.10.2020. The opposite party no.4 and his family members used to ill-treat the mother of the child. It is alleged that on 09.02.2026, father of the child snatched him away from his mother from Bihar where the mother of the child is serving as Assistant Teacher. However, she resigned from that post on 20.01.2026 and has come to live with her parents at Lucknow. It is alleged that the child has been illegally detained by his father.

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The learned AGA-I has opposed the writ petition on the basis of written instructions and he has submitted that the child's mother was working in Bihar State for the past one year during which period also the child continued to live with his father. The opposite party no.4 is taking care of the child. The child is studying in Primary School Manjhua, he is hale and hearty and the family members of the opposite party No.4 take good care of the child.

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HABC No. 140 of 2026

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The child residing with his father continuously and in a settled manner, cannot be said to be in illegal detention.

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In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari: (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

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HABC No. 140 of 2026

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

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The custody of children is a complex issue which is to be decided keeping in view the welfare of the children. The custody of a minor child, who has

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HABC No. 140 of 2026

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constantly been residing with his father, cannot be disturbed without a detailed examination of facts and evidence relating to the welfare of the child. Welfare of the child can only be decided after giving an opportunity to the parties to lead evidence.

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Accordingly, in absence of a case of illegal detention of the child having been made out. 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 28, 2026

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-Amit K-

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(Subhash Vidyarthi,J.)

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

Piyush Srivastava Thru. His Mother and Natural Guardian Milee Asthana v. State of U.P. Thru. the Prin. Secy. Home Lko. and 3 Others

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Piyush Srivastava Thru. His Mother and Natural Guardian Milee Asthana v. State of U.P. Thru. the Prin. Secy. Home Lko. and 3 Others

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