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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 48

Case :- HABEAS CORPUS WRIT PETITION No. – 255 of 2022

Petitioner :- Arahat Bhaskar (Minor) And Another

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Narendra Mohan,Harish Chandra Mishra

Counsel for Respondent :- G.A.

Hon’ble Syed Waiz Mian,J.

1. This Habeas Corpus writ petition, under Article 226 of the Constitution of

India, has been preferred on behalf of the petitioner Arahat Bhaskar (Minor)

‘corpus’, aged about 7 years, through her natural guardian, mother, Smt. Vandana

Maurya, petitioner no. 2, against the respondent no. 1 to 4, praying for a

direction in the nature of habeas corpus, to the respondent no. 2, Superintendent

of Police, Jhansi, District-Jhansi, to produce the corpus namely Arahat Bhaskar

(minor), before this Court and set up his liberty kept in custody of respondent

no. 4, Shailendra Kumar Singh, father of the corpus, and further for issuance of a

direction to the respondent nos. 2 and 3, Superintendent of Police, Jhansi,

District Jhansi and Station House Office, Police Station Kotwali, District-Jhansi, to

protect their lives.

2. Brief facts of the case in nutshell are as under:

3. Petitioner no.2, Vandana Maurya, was married with respondent no. 4 on

05.05.2013 and from their wedlock, she gave birth to a male child on

26.10.2015; he was admitted to class LKG-K, for the Session 2020-21 in Dream

India School-Orai, Uttar Pradesh; After some time, dispute arose between both

spouses and on 23.11.2021 a case no. 927 of 2021, under Section 10 of Hindu

Marriage Act was preferred before the learned Principal Judge, Family Court,

Jhansi. The petitioner No. 2 also filed an application on 23.11.2021; under

Section 125 of Cr.P.C. in the case No. 1063 of 2021, before the Principal Judge,

Family Court, Jhansi, on 23.11.2021; her husband, Shailendra Kumar Singh,

respondent no. 4, is in Uttar Pradesh Police and presently posted as incharge

Inspector, Police Station-Bazarkhala, District-Lucknow. Since, respondent no. 4,

being in police, he regularly threatens her for life and for protection of the

family, she informed the police authorities through various letters.

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4. Petitioners have also averred that on 26.03.2022, the petitioner no. 2,

Vandana Maurya, attended a marriage ceremony along with her minor son

(petitioner no. 1) in the village Bainipura, Police Station Rampura, District-

Jalaun; her husband, respondent no. 4, appeared in the marriage ceremony

without any invitation and wanted to take minor son with him forcibly, on

her intervention, the respondent no. 4 put his pistol on her head threatening

that if the child was not given to him he will shoot her; eventually,

respondent no. 4 took with him the child forcibly. Since the matter is pending

before the Court hence he has developed grudge against her; it is also averred

that the child be returned to her as he is her life and her life is not safe as

her husband is in the Police force and holding an influential position.

5. Petitioner no. 2 presented a complaint on 26.03.2002 itself to the in

charge Police Station-Rampura, District-Jalaun, narrating the occurrence dated

26.03.2022; she also stated that her son who was taken by her husband,

forcibly, with him, be recovered and be given in her custody. She also made

online complaint through IGRS on 28.03.2022 to Commissioner Lucknow and

Superintendent of Police Jalaun, informing them about the incident took place

during marriage ceremony. During her living with her husband he had

subjected her to mental and physical torture but none of the police authorities

has acted upon her complaints. It is stated that she is employed as staff nurse

on contract basis and as such getting the salary by which she can also

maintain her child; Since her child is aged about seven years and is in illegal

custody of her husband/ respondent no. 4, therefore, in view of the above the

petitioner no. 1 (son), in the facts and circumstances of the case, needs to

remain in her custody; since her suits, as mentioned above, before the

Principal Judge, Family Court Jhansi, shall take time for their final

adjudication, therefore, the petitioners are left with no other efficacious and

speedy alternative remedy except to invoke the extra ordinary jurisdiction of

this Court under which her husband, respondent no. 4, be directed to produce

her son (minor) before this Court and set up his liberty kept in his illegal

custody. It is also urged that under writ jurisdiction, a direction in the nature

of mandamus to respondent nos. 2 and 3 (S.P. Jhansi and Station House

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Officer, Police Station-Kotwali, District-Jhansi) be given to protect their lives

and liberty.

6. Counter affidavit on behalf of the respondent no. 4, Shailendra Kumar

Singh, has been filed denying the allegations against him, in which he has

affirmed that he had made efforts to keep her wife happy but, due to her

introvert nature and negative outlook, differences occurred between them and

on the pretext of toothache she left her matrimonial house on 21.11.2021 for

her parental house and also she took the child with her and promised to

return within three days but on his requests also, she has not returned to her

matrimonial house. It is further affirmed in the counter affidavit that

altercation between them is a result of regular interference of his mother and

brother-in-laws and his wife herself, out of the greed, habitually demanded

money on several grounds, from him; they also had borrowed money from

him but despite repeated requests, money is not being returned to him.

7. On 26.03.2022, he came to know that his son was kept in Jhansi,

whereas, his wife mostly resides in Orai to discharge her duties leaving the

child with old aged grand parents (Nana Nani). Since his father and brother in

laws are involved in criminal activities and two criminal cases are registered

in Police Station-Rampur Karkhana, District-Deoria and Jhansi, respectively,

and therefore, criminal minded persons did often visit their house and in such

circumstances it is dangerous to live his child at their hands and there is

every likelihood of harm to his child may be caused.

8. It is also stated that his wife is making false complaints to implicate

him in false case; he being a responsible father and considering the future of

the child his admission in a boarding school namely Bal Vidya Mandir, at

Lucknow, has been made; since he is working as an Inspector in U.P. Police,

and getting salary of Rs. 65,000/- per month he is in a financial capacity and

is thus able to look after the welfare of the child which is not possible for the

petitioner no. 2, his wife, due to her weak financial condition. It is also

averred that petitioner no. 2 has herself filed an application under Section 125

Cr.P.C. seeking maintenance allowance for herself and her child and in such a

situation the education, upbringings and other needs of the child would

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suffered, if in such circumstances the child ”corpus’ is given in the custody of

petitioner no. 2 and there is every possibility that the child may go ashtray.

9. It is also averred that the petitioner no. 2 has narrated the wrong facts

and baseless grounds in the writ petition and being father he is legal and

natural guardian of child and has legal right to child custody; instant petition

which is full of lies, is liable to be dismissed with cost.

10. Petitioners and respondent no. 4, in their respective averments, made in

the writ petition and counter affidavit, respectively, have filed papers and

photographs as annexures.

11. Learned counsel for the respondent no. 4 has not only referred Sections

6 and 13 of The Hindu Minority and Guardianship Act 1956 but has also

referred Basudha Sethi Ors. vs. Kiran V. Bhaskar Anr., 2022 0 Supreme

(SC) 24 and in Rohith Thammana Gowda vs. State of Karnataka Ors. , 2022

Live Law (SC) 643, Civil Appeal No. 4987 of 2022 (arising out of SLP (C) No.

17166 /2021).

12. I have heard learned counsel for both the parties and carefully perused

the record.

13. In the instant petition question for dispute of custody of corpus ”Arahat

Bhaskar’ (minor), aged about 7 years is involved. It is admitted to the parties

that male child, petitioner no. 2 bigoted on 26.10.2015 and is aged about 7

years. It is also admitted to the parties that petitioner no. 2, Smt. Vandana

Maurya, on 23.11.2021, has filed a case no. 927 of 2021, under Section 10 of

Hindu Marriage Act, before the learned Principal Judge, Family Court, Jhansi,

on 23.11.2021. The petitioner No. 2 also filed an application under Section

125 of Cr.P.C. in the case No. 1063 of 2021, before the Principal Judge,

Family Court, Jhansi, on 23.11.2021.

14. Petitioners admitted that as of now, petitioner no. 1 ”corpus’ Arahat

Bhaskar’ has been admitted to a boarding school, namely Bal Vidya Mandir,

at Lucknow, and presently he is studying there. There is also no dispute

between answering parties that the respondent no. 4, Shailendra Kumar Singh

and petitioner no. 2 Vandana Maurya, are legally wedded husband and wife.

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The respondent no. 4, Shailendra Kumar Singh, is presently working as

Inspector in U.P. Police, and at present his income is Rs. 65,000/-. Whereas,

the petitioner no. 2, Smt. Vandana Maurya, is also employed on contract basis

as a nurse and is getting salary out of her employment. As such both the

parents of ”corpus’ Arahat Bhaskar, are not only educated but are also doing

job in different departments at different places. Petitioner No. 2, Smt.

Vandana Maurya, is living with her parents in the District of Jhansi. However,

she is serving in capacity of staff nurse in District-Orai and at the time of her

appointment, vide appointment letter dated 16.10.2014, annexure no. 11, she

was appointed on salary of Rs. 16,500/- per month, by CMO, Jalaun at Orai.

15. Petitioners have stated in paragraph no. 11 of the petition that on

26.03.2022, the petitioner no. 2, Vandana Maurya, attended a marriage

ceremony, along with her minor son (petitioner no. 1) in the village

Bainipura, Police Station Rampura, District-Jalaun; her husband, respondent

no. 4, appeared in the marriage ceremony without any invitation and wanted

to take with him forcibly the petitioner no. 1; on her intervention the

respondent no. 4 put his pistol on her head, threatening that if the child was

not given to him he will shoot her; eventually, respondent no. 4 took with

him the child forcibly.

16. It has also averred in the petition that on 06.03.2022 she wrote a letter

to the Station House Officer, Police Station-Rampura, District-Jalaun, for

lodging FIR. Petitioner No. 1 ”corpus’ was admitted to LKG-K for the Session-

2020-21 in Dream India School-Orai, Uttar Pradesh. Thus, it is reflected that

before admission of the petitioner no. 1 in Bal Vidya Mandir, Boarding

School, Lucknow, he was studying in Dream India School-Orai, in the

Academic Session 2020-21. It also transpires from the record that respondent

no. 4 has not disclosed/ explained, as to how the petitioner no. 1 came to his

custody, whereas, he Arahat Bhaskar ”corpus’ was initially, in Session 2020-

21, was studying in aforesaid school at Orai.

17. Petitioner no. 2 as well as respondent no. 4, in their respective

affidavits, have stated about the criminal matters/ complaints. This Court does

not think it proper to express any opinion about these criminal matters and

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this Court is concerned only with regard to custody of petitioner no. 1.

18. At the outset, learned counsel for the respondent no. 4 submits that

since the application, under Section 10 of Hindu Marriage Act, of petitioners,

is pending, before the Principal Judge, Family Court, Jhansi, therefore, the

present habeas corpus petition is not sustainable in the eyes of law, whereas,

the learned counsel for the petitioners not only refutes the contention put

forth, on behalf of the respondent no. 4 but, also contends that the pendency

of the application under Section 10 of Hindu Marriage Act, before the

Principal Judge, Family Court, Jhansi, does not bar her to avail the remedy

under Article 226 of the Constitution of India.

19. Learned counsel for the respondent no. 4 has not referred any such law

or judicial pronouncements in support of his submissions that during pendency

of application under Section 10 of Hindu Marriage Act the petitioners cannot

avail the remedy under Article 226 of the Constitution of India.

20. This Court is of the view that inspite of pendency of the

aforementioned application under Section 10 of Hindu Marriage Act,

jurisdiction under Article 226 of the Constitution of India is not barred. Thus

the contention of learned counsel for the respondent no. 4 has no sanction of

law.

21. Section 26 of Hindu Marriage Act 1955 is of special significance as it

casts an omnibus embargo even on a guardian of a person appointed or

declared by the Court from removing the ward from the limits of its

jurisdiction. This is because when a dispute arises between the parents of a

minor, the court steps in as parens patriae and accordingly appropriates or

confiscates to itself the discretion earlier reposed in the natural parents of the

minor.

22. Section 6 (a) of Hindu Minority and Guardianship Act, 1956, therefore,

preserves the right of the father to be the guardian of the property of the

minor child but not the guardian of his person whilst the child is less than

five years old. It carves out the exception of interim custody, in

contradistinction of guardianship, and then specifies that custody should be

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given to the mother so long as the child is below five years in age. This

Section or for that matter any other provision including those contained in the

Gurdian and Ward Act, 1890 does not disqualify the mother to custody of the

child even after the latter’s crossing the age of five years.

23. Section 13 of The Hindu Minority and Guardianship Act, 1956

postulates that the appointment or declaration of any person as guardian of a

Hindu minor by a court, the welfare of the minor shall be the paramount

consideration.

24. According to the sub section 2 of Section 13 of the Act, No person

shall be entitled to the guardianship by virtue of the provisions of this Act or

of any law relating to guardianship in marriage among Hindus, if the court is

of opinion that his or her guardianship will not be for the welfare of the

minor.

25. Several other statutes also contain definitions of ‘guardian’ such as The

Juvenile Justice (Care Protection) Act, 2000 which in Section 2 (J) states

that ;

” “guardian”, in relation to a child, means his natural guardian or any

other person having the actual charge or control over the child and

recognized by the competent authority as a guardian in course of proceedings

before that authority.”

Since the Juvenile Act is principally concerned with the welfare of the

juvenile the accent understandably and correctly is on the “person” rather

than the estate.

The Tamil Nadu Elementary Education Act, 1994 defines the term

guardian as – “any person to whom the care, nurture or custody of any child

falls by law or by natural right or by recognized usage, or who has accepted

or assumed the care, nurture or custody of any child or to whom the care,

nurture or custody of any child has been entrusted by any lawful authority”.

26. The Guardianship postulates control over both the person as well as the

assets of a minor or of one and not the other. This is obvious from a reading

of the definitions contained in Section 4 (2) of the Guardians Wards Act,

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1890 and Section 4(b) of the The Hindu Minority and Guardianship Act, 1956.

27. Section 17 gives primacy to the welfare of the minor. Sub section 2

thereof enjoins the court to give due consideration to the age, sex and

religion of the minor, the character and capacity of the proposed guardian

and his nearness of kin to the minor.

28. In Rohith Thammana Gowda vs. State of Karnataka Ors. , the Hon’ble

Apex Court laid down that that in a matter involving the question of custody

of a child it has to be borne in mind that the question ”what is the

wish/desire of the child’ is different and distinct from the question ”what

would be in the best interest of the child’. In other words welfare of the child

shall be the paramount consideration.

29. It appears from the above that the question of welfare of minor shall be

the paramount consideration in irrespective of the wish or desire of the minor,

mother or father.

30. It is true that the petitioner no. 2 has filed an application under Section

125 Cr.P.C. against the respondent no. 4 before the Principal Judge, Family

Court, Jhansi, seeking maintenance allowance per month, for herself and

petitioner no. 1. In this respect it is contended on behalf of respondent no. 4

that petitioner no. 2 is not in such a financial capacity to not only maintain

minor but also to bear the educational and other expenses to be incurred for

the welfare of the child. Whereas, the petitioner no. 2, states that since she is

also employed as staff nurse and getting monthly salary of more than 16,000/-

per month. She mostly lives with her parents and therefore, she saves such

amount during the month which can meet the expenses to be incurred on

education and health etc. to keep the welfare of the child.

31. Petitioner no. 2, as stated above, is doing her job at Orai and her

parents are resident of Jhansi city. Staff nurse has to discharge their duties in

shift of eight hours. Job of a staff nurse is also to take care of patients, that

means the petitioner no. 2 is having the ability and experience to serve the

patients with love and affection. She is also mother of the petitioner no. 1

and love and affection of a mother is unique and unparalleled. Whereas,

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respondent no. 4 is a police officer and posted in a Police Station-at Lucknow.

A police officer has to perform his duties round O clock. In his job there is

always paucity of time.

32. Respondent no. 4 has not stated, any where, in his counter affidavit

that during discharge of his official duties, time will remain for care of the

minor? By imagination it is inferred that there is no one, other than the

respondent no. 4, to look after the affairs of the petitioner no. 1 and being in

police force he is to discharge his duties round O clock, therefore, he has got

admitted the petitioner no. 1 in a Boarding School. In such a situation, the

welfare of the child has been left to be on mercy of the Boarding staff who

are obviously not attached to the petitioner no. 1, emotionally. Whereas, in

the absence of petitioner no. 2, during discharge of her duties, as staff nurse,

grand mother and father are there to look after the affairs of petitioner no. 1

and also after furnishing her duties, petitioner no. 2 has ample time to not

only give her love and affection to the petitioner no. 1, but, also to look after

the health, education, and other affairs of the child.

33. In the circumstances, the petitioner no. 2 and respondent no. 4 suggest,

that it is petitioner no. 2 who is capable to look after, in a better way, the

welfare of the petitioner no. 1. Considering her amount of salary she is

getting out of her job, and living with her parents in their house, she is also

in such a financial capacity to meet the educational and other expenses of the

petitioner no. 1.

34. It is also manifested from the above analysis that respondent no. 4 took

the petitioner no. 1 with him to Lucknow on 26.03.2022, from the Village

Bainipura, Police Station Rampura, District-Jalaun, where, marriage of a

relative of petitioner no. 2 was being solemnized. On the one hand it is the

submission of the petitioner no. 2 that the respondent no. 4 had took away

the petitioner no. 1 forcibly at gun point, whereas, respondent no. 4 states

that on the permission of the petitioner no. 2, in view of his ill health and

because of his proper care was not being taken by the petitioner no. 2 and by

her parents, he was taken the petitioner no. 1. It is further stated by the

respondent no. 4 that he had attended the marriage ceremony on 26.03.2022

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on invitation by Sangh Ratan Maurya through mobile, on 14.03.2022.

35. Next it is submitted by the respondent no. 4 that he is taking care of

daily needs, education, upbringings of the petitioner no. 1 and if the custody

of the petitioner no. 1 is given to the petitioner no. 2, the future of the child

shall become dark as she is not capable to meet the expenses on daily needs,

education and upbringings of the child but also the petitioner no. 1 would

suffer loss of love and affection.

36. This Court is not going to the question whether the respondent no. 4

was invited or not invited in the marriage ceremony, stated to have

solemnized on 26.03.2022 and also into the question whether the child was

abducted on gun point or not. But, the averments/ submissions of respondent

no. 4 that the petitioner no. 2 had requested him to take the petitioner no. 1

with him to Lucknow, in the circumstances of writ petition, do not appeare to

be reliable.

37. The petitioner no. 2 and respondent no. 4 are at loggerheads and

wanted to part their ways as parthian shot they may level extreme allegations

against each other so as to depict the other unworthy to have the custody of

the child. But for this Court, the welfare of the child is the paramount

consideration. In the opinion of this Court, it is absolutely unnecessary to

discuss and deal with all the contentions and allegations in their respective

pleadings and affidavits of both the petitioner no. 4 and respondent no. 4.

38. This writ petition involves only the question of custody of child and

this petition does not pertains about the guardianship of the child. Custody is

different from guardianship.

39. In Habeas Corpus, Vol. I, page 581, Bailey states;

“The reputation of the father may be as stainless as crystal; he may not be

afflicted with the slightest mental, moral or physical disqualifications from

superintending the general welfare of the infant; the mother may have been

separated from him without the shadow of a pretence of justification; and yet

the interests of the child may imperatively demand the denial of the father’s

right and its continuance with the mother. The tender age and precarious

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state of its health make the vigilance of the mother indispensable to its proper

care; for, not doubting that paternal anxiety would seek for and obtain the

best substitute which could be procured yet every instinct of humanity

unerringly proclaims that no substitute can supply the place of her whose

watchfulness over the sleeping cradle, or waking moments of her offspring, is

prompted by deeper and holier feeling than the most liberal allowance of

nurses’ wages could possibly stimulate.”

40. Hon’ble Apex Court in Nil Ratan Kundu Anr vs. Abhijit Kundu 2008

(9) SCC 413 has held “Principles governing custody of minor children”;

“In our judgment, the law relating to custody of a child is fairly well-settled

and it is this. In deciding a difficult and complex question as to custody of

minor, a Court of law should keep in mind relevant statutes and the rights

flowing therefrom. But such cases cannot be decided solely by interpreting

legal provisions. It is a humane problem and is required to be solved with

human touch. A Court while dealing with custody cases, is neither bound by

statutes nor by strict rules of evidence or procedure nor by precedents. In

selecting proper guardian of a minor, the paramount consideration should be

the welfare and well-being of the child. In selecting a guardian, the Court is

exercising parens patriae jurisdiction and is expected, nay bound, to give due

weight to a child’s ordinary comfort, contentment, health, education,

intellectual development and favourable surroundings. But over and above

physical comforts, moral and ethical values cannot be ignored. They are

equally, or we may say, even more important, essential and indispensable

considerations. If the minor is old enough to form an intelligent preference or

judgment, the Court must consider such preference as well, though the final

decision should rest with the Court as to what is conducive to the welfare of

the minor.”

41. In Rajeswari Chandrasekar ganesh vs. state of Tamil nadu ors., 2022

Law Suit (SC) 838, in para 117, Hon’ble Supreme Court observed that “we

would like to convey to the parties that their two minor children are

watching them very closely. Showing the children that their parents can

respect each other and resolve the conflict respectfully will give them a good

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foundation for the conflict that may, God forbid, arise in their own lives. The

parties should try to do their best to remain relaxed and focused. It is critical

to maintain boundaries between the adult problems and children. It is of

utmost interest to protect the innocence of children and allow them to remain

children. They must not be burdened by any adult problem. Minor children

do not have the coping skills or the intellectual ability to understand any

issues like the financial constraints, adult relationship issues or their parents

unhappiness.”

42. The petitioner no. 2 and the respondent no. 4, in the instant petition,

are also expected to understand and follow the observations made by the

Hon’ble Apex Court.

43. None of the parties is seeking visitation rights hence no order in this

pretext is being passed.

44. Aforesaid discussions lead to persuade that the company of the

petitioner no. 2 with petitioner no. 1 is absolutely essential. It may also be

underlined that the primary need of a child is love and care of its mother,

where she has been its primary care giving parent.

45. In the facts and circumstances of the instant habeas corpus petition, this

Court is of the considered opinion that the custody of the petitioner no. 1,

should be given to the respondent no. 2. Accordingly, this petition is allowed

and the respondent no. 4, Shailendra Kumar Singh is directed to entrust the

custody of the corpus, petitioner no. 1- Arahat Bhaskar, to the petitioner no.

2, Smt. Vandana Maurya, within a fortnight from the date of receipt of

certified copy of this judgment, at her parents address- Vila No. 10, Nalanda,

Om Garden Colony, Police Station-Panchawati, Kotwali-Jhansi, District-Jhansi.

46. In the event of default, the Chief Judicial Magistrates Lucknow and

Jhansi, in coordination with each other and the superintendent of Police,

Jhansi and Police Commissioner, Lucknow, shall cause the custody of

petitioner no. 1-Arhat Bhaskar, (Minor), son of petitioner no. 2-Smt. Vandana

Maurya (mother) and respondent no. 4-Shailendra Kumar Singh (father), to the

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petitioner no. 2 Smt. Vandana Maurya, at aforementioned address of her

parents, at Jhansi.

47. Let this order be communicated to the learned Chief Judicial Magistrate,

Jhansi, as well to the learned Chief Judicial Magistrate, Lucknow, the

Superintendent of Police Jhansi and Commissioner of Police, Lucknow, by the

Joint Registrar (compliance) of this Court.

48. Petitioner no. 2 also expresses her apprehension with regard to her and

petitioner no.1 lives, safety and liberty. Considering all aspects of this matter,

Senior Superintendent of Police Jhansi and Superintendent of Police Orai at

Jalaun, are expected to look into this aspect of petitioner no. 2, Smt. Vandana

Maurya, about threat perception and shall do needful.

Order Date :- 2.8.2022

Deepak/