Master Shrihan Thru. His Mother Dr. Shilpy Srivastava vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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HABEAS CORPUS WRIT PETITION No. - 339 of 2024

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Master Shrihan Thru. His Mother Dr. Shilpy Srivastava

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.....Petitioner(s)

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Versus

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State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others

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.....Respondent(s) Counsel for Petitioner(s) : Arunendra Mohan Shukla, Gupteshwar Prasad Jaiswal, Santosh Kumar Misra Counsel for Respondent(s) : G.A., Akshat Srivastava, Amit Dwivedi, Vivek Sonkar

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Court No. - 14

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HON'BLE RAJEEV SINGH, J.

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1. On 12.03.2025 following order was passed:-

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1. Heard learned counsel for the petitioner, learned A.G.A. for the State and Sri Amit Dwivedi, learned counsel appearing for the private respondent.

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2. The instant petition has been filed by the petitioner seeking following reliefs:"(i) To issue a writ, order or direction in the nature of Habeas Corpus directing and commanding opposite party nos.2 to 4 to produce the detenue before the Hon'ble Court. (ii) To handover the detenue- Master Shrihan to the deponent."

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3. Learned counsel for the private respondent has raised preliminary objection that respondent no.4/private respondent is natural father of the detenue-child, hence, custody of his son is legal.

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4. Learned counsel for the private respondent has submitted that it is admitted case of the parties that the detenue was residing with her maternal grandmother at Flat No. 1009/2, Sector 39-B, Chandigarh and private respondent traveled from Darbhangha, Bihar to New Delhi with the intention to see his son/detenue who was having persistent fever. The private respondent reached Delhi on 21.10.2024 at 15:25 hours by Flight No.SG8477 and then went to meet his friend at Max Hospital, Dwarka, New Delhi. Further, he took a taxi for Chandigarh and after reaching Chandigarh, went to the house of brother-in-law (Jija) of her wife at about 9:30 pm and stayed with the child. It has further been submitted that on 22.10.2024, in view of the illness of the child, the deponent with the consent of all present there took his son and reached Delhi by the same taxi. Thereafter, he along with his son boarded at Flight No. 6E-2482 from Delhi to Patna

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HABC No. 339 of 2024

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2

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on 22.10.2024 and reached Patna at 21:00 hours.

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It has next been submitted that company of the child was taken by the private respondent from Chandigarh and then he took him to Darbhangha, hence, no cause of action, wholly or in part, was taken place within the territory of this Court.

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Relying on the decision of Hon'ble Apex Court in the case of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others reported in 1994 AIR SCW 3287, on the decisions of this Court in the cases of Manish Kumar Mishra Vs. Union of India reported in AIR OnLine 2020 All 813 and Rajendra Kumar Mishra Vs. Union of India reported in 2005 LAB IC 2229, learned counsel for the private respondent has vehemently submitted that this petition is liable to be dismissed.

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5. In response to the aforesaid objections, learned counsel for the petitioner has submitted that the detenue, aged about four years, was residing with his mother- Dr. Shilpy Srivastava at Lucknow and was studying in Class- Eurojunior at 'Euro Kids School' Vrindavan Yojana, Lucknow.

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It has further been submitted that as the private respondent was willing to meet the detenue, the detenue was sent along with mother of the deponent because she is a doctor and long leave is not permissible to her. The fact that the detenue was suffering from fever is totally incorrect as the intention of the private respondent is very much clear from the enclosures annexed with the objection that he took a flight on 21.10.2024 from Darbhangha to Delhi; the annexure no.1 of the objection clearly reveals that the flight reached at Delhi on 21.10.2024 at 15:25 hours. The private respondent admitted that he met to his fried at Max Hospital, Dwarka, New Delhi and then took a taxi to reach at the place where the child and his maternal grandmother were staying. On the next day in morning after taking breakfast, without any clear intention, the private respondent took away the child. In this regard, search was started. The private respondent also admitted that he boarded along with his son at Flight No. 6E-2482 from Delhi to Darbhangha on 22.10.2024, which was scheduled at 19:10 hours from Delhi.

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It has next been submitted that in case the child was suffering from fever, better medical facility was available at Chandigarh rather than at Darbhangha. The permanent residence of the child is at Lucknow and he was brought to Chandigarh only on the advice of the private respondent for meeting. But, intention of the private respondent was to take away the child, hence, cause of action will lie to this Hon'ble Court.

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It has also been submitted that the detenue-child is four years old and is not capable of expressing his preference between his parents that in whose custody, he would mostly like to be. In this circumstance, principles of parens patriae would be applicable. Relying on the decisions of Hon'ble Apex Court in the cases of Rupali Devi Vs. State of

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HABC No. 339 of 2024

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3

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U.P. and Ors. reported in [2019] 6 S.C.R. 577 and Writ Petition (Crl.) No. 402 of 2021 (Rajeswari Chandrasekar Ganesh Vs. The State of Tamil Nadu and Ors.) dated 14.07.2022, and on the decision of High Court of Orissa at Cuttack reported in WPCRL No. 160 of 2021 (Nesar Ahmed Khan Vs. State of Orissa and Ors.) dated 03.04.2023, learned counsel for the petitioner has vehemently submitted that permanent residence of the child is at Lucknow and he was brought to Chandigarh on the advice of the private respondent who took away the child and immediately came back to Darbhangha, therefore, cause of action starts from Lucknow and this Hon'ble Court is having such jurisdiction.

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6. Considering the submissions of learned counsel for the parties and going through the contents of the pleadings exchanged between the parties, it is evident from the record that the child is residing and studying at Lucknow with his mother and temporarily went to Chandigarh along with his grandmother. Admittedly, the private respondent reached Delhi on 21.10.2024 at 15:25 hours and then went to Max Hospital, Dwarka, New Delhi to meet his friend. Thereafter, the private respondent took a taxi and went to Chandigarh where he stayed with the child, after that, by the same taxi, he took away the child and came to Delhi, from where, he boarded along with the child at Flight No. 6E-2482 and came to Patna. In his objection, he mentioned that the child was suffering from fever. But, this is very surprising that despite the detenue was having persistent fever, why proper treatment was not provided to him at Chandigarh. The aforesaid judgements relied by learned counsel for the private respondent are not applicable in the case of Habeas Corpus of a minor child who was taken away mischievously. Therefore, the objections raised by the private respondent have no force and accordingly the same are hereby rejected.

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7. List this case on 27.03.2025.

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8. The private respondent is directed to appear before this Court on 27.03.2025 along with the detenue.

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9. District Magistrate, Darbhangha and Superintendent of Police, Darbhangha are also directed to ensure the presence of the private respondent- Dr. Utsav Raj s/o Rajranjan Prasad r/o House No.9, Banglagarh, Darbhanga, Bihar, Mob No. 9560387796 before this Court on the next date of listing.

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10. Office shall communicate this order to District Magistrate, Darbhangha and Superintendent of Police, Darbhangha for necessary compliance, forthwith.

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It is submitted by learned counsel for the petitioner that the aforesaid order was challenged before the Hon’ble Supreme Court by filing a Special Leave Petition (SLP), which was dismissed with liberty to the parties to cooperate in the mediation proceedings before the High Court.

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HABC No. 339 of 2024

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However, as the mediation proceedings could not succeed, the deponent has not been able to get access to or associate with the detenue.

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Sri Aporve Pal, Advocate, holding brief for Sri Akshat Srivastava, learned counsel appearing for respondent no. 4, states that the matter may be adjourned.

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On his request, the matter is adjourned.

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5. List this case on 13.03.2026.

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Respondent no.4 is directed to produce the detenue before this Court on the next date, failing which appropriate order shall be passed.

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(Rajeev Singh,J.)

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February 23, 2026

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Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Master Shrihan Thru. His Mother Dr. Shilpy Srivastava v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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Master Shrihan Thru. His Mother Dr. Shilpy Srivastava v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

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