Rishvi Satyarthi Thru. Her Mother Smt. Shivani Chandra vs Pankaj Kumar Satyarthi and 2 Others

Heard Sri Jalaj Kumar Gupta, the learned counsel for the petitioner, Sri Mayank Sinha, the learned AGA for the State and Sri Deepak Kumar, who has filed vakalatnama on behalf of opposite party no. 1 which is taken on record.

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In compliance of the earlier order, the opposite party no. 1 has appeared along with minor child Ms. Rishvi Satyarthi.

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The instant writ petition has been filed under Article 226 of the Constitution of India requesting for production of Ms. Rishvi Satyarthi aged about 8 years from the custody of the opposite party no. 1. It has been pleaded in the writ petition that the mother of the child Smt. Shivani Chandra got married to the opposite party no. 1 on 20.11.2016. Out of the wedlock, Ms. Rishvi Satyarthi was born on 21.10.2017. The opposite party no. 1 suffered from kidney ailment in

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HABC No. - 37 of 2026

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the year 2022 due to which he had to undergo kidney transplantation. His treatment is still continuing. The elder sister of Smt. Shivani Chandra had rendered some financial assistance for treatment of opposite party no. 1.

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Further demands raised by the opposite party no. 1 for financial assistance for his treatment could not be met, the mother of the child was thrown out from her matrimonial home on 21/22.07.2024 whereas the daughter was detained with the opposite party no. 1.

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The opposite party no. 1 has filed Regular Suit No. 1056/2024 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in the court of Principal Judge, Family Court, Hardoi.

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The learned counsel for the petitioner states that Smt. Shivani Chandra has put in appearance in the aforesaid suit but has not filed any written statement.

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From the pleadings made in the writ petition, it appears that the child is living with her father for the past more than 1 year and 8 months. A suit under Section 9 of the Hindu Marriage Act is also pending for the past more than 1 year and 7 months. Although the mother of the child has knowledge of the suit and has put in appearance in the suit, she has chosen not to file any written statement.

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It is always open to the parties to a proceeding before the Family Court to file an appropriate application before the Family Court under Section 26 of the Hindu Marriage Act regarding custody or visitation of a child of the parties but the petitioner-wife has not filed any such application before the Family Court.

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

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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

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HABC No. - 37 of 2026

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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 : (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 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

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HABC No. - 37 of 2026

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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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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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At this stage Sri Jalaj Kumar Gupta, the learned counsel for the petitioner requested that the Court should pass an interim order permitting visitation rights to the mother of the child.

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Interim orders are granted in aid of final relief to be granted in the writ petition. When the court finds no good ground to entertain the writ petition and the writ petition is dismissed leaving it open to the petitioner to pursue her remedy before the Family Court, the Court cannot grant interim relief after dismissal of the writ petition as has been held by the

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HABC No. - 37 of 2026

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Hon'ble Supreme Court in State of Orissa v. Madan Gopal Rugta 1951 SCC OnLine SC 63 in the following words:

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"15. In our opinion, Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80 of the Civil Procedure Code, and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit for (sic, or) proceeding . If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under Article 226 of the Constitution . In our opinion, the language of Article 226 does not permit such an action."

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(emphasis added)

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The aforesaid view of the Hon'ble Supreme Court has once again been reiterated in the case of Mangal Rajendra Kamthe v. Tahsildar, Purandhar 2026 SCC OnLine SC 297.

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In view of the aforesaid law, this Court deems it appropriate to decline the request of the petitioner praying for an interim order granting visitation rights and that relief can also be claimed in the Regular Suit to be filed before the Family Court.

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(Subhash Vidyarthi,J.)

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March 30, 2026 Pradeep/-

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

Rishvi Satyarthi Thru. Her Mother Smt. Shivani Chandra v. Pankaj Kumar Satyarthi and 2 Others

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Rishvi Satyarthi Thru. Her Mother Smt. Shivani Chandra v. Pankaj Kumar Satyarthi and 2 Others

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