HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- HABEAS CORPUS WRIT PETITION No. – 1088 of 2019

Petitioner :- Kavita Singh Chauhan (Minor) And 2 Others

Respondent :- State Of U.P. And 7 Others

Counsel for Petitioner :- Arun Kumar Tiwari

Counsel for Respondent :- G.A.,Akhila Nand Pandey,Ramesh Rai

Hon’ble Vivek Kumar Singh,J.

Counter affidavit filed on behalf of respondent nos. 4 to 8, is taken on record.

Heard learned counsel for the petitioners, learned counsel for respondent nos. 4 to 8, learned AGA and perused the record.

By means of the present habeas corpus petition, the prayer made is to give a direction the respondent nos. 4 to 7 to produce the corpus, petitioner no. 1 namely Km. Kavita Singh Chauhan (Minor) and petitioner no. 2 namely Shaurya Chauhan (Minor) before this Court.

Pursuant to the earlier order of this Court dated 26.11.2019, the mother of the corpus namely Smt. Vijay Laxmi and corpus namely Km. Kavita Singh Chauhan and Shaurya Chauhan along with his father namely Yogesh Kumar Chauhan are present in the Court, who have been identified by their counsel.

Before proceeding any further with the merits of the case, the Court proceeds to examine the corpus only for the purpose of knowing their desire as to where they wants to go.

On being asked from both the corpus as to what are their name, they inform that their name are Km. Kavita Singh Chauhan and Shaurya Chauhan.

On being asked from them as to where they want to go from this Court, they have informed the Court that they would like to go with their father, who is present before this Court.

Learned counsel for the respondents submits that the present habeas corpus writ petition is not maintainable in as much as petitioner nos. 1 and 2 are natural daughter and son of respondent no. 4 and both are very well looked after by their father and they are not under wrongful confinement with the respondents. He further submits that in the light of admitted position that the children are in the custody of their father, the habeas corpus petition does not lie as an essential ingredient for the writ of habeas corpus is that the custody has to be illegal.

The counsel for the respondents contend that the writ of habeas corpus cannot be issued when efficacious alternative remedy is available to the petitioner No. 3 under Hindu Minority and Guardianship Act, 1956. It is also contended that the question of custody of the minor child is to be decided not on consideration of the legal rights of the parties; but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the respondents who are taking care of the child since more than nine months, they alone would be entitled to have the custody of the child in preference to petitioner No.3-mother of the children.

I have carefully considered the rival contentions and statement of the corpus recorded herein above.

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 of 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.

In the matter of Tejaswini Gaud and Ors. Vs. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 Supreme Court Cases 42 My Lord’s of The Apex Court have observed as follows:-

“26. Welfare of the minor child is the paramount consideration:- The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.”

In this view of the matter as well as considering the statement of the corpus made before this Court, which is noted above, this habeas corpus writ petition fails and is dismissed, accordingly.

However, till the children are settled down in the atmosphere of the respondent no. 4 father’s house, the petitioner No. 3 i.e. mother of the corpus shall visit and meet the corpus every Saturday and Sunday at the residence of respondent No. 4 namely Yogesh Kumar Chauhan till both the corpus attains the age of 12 years and the father of the corpus undertakes that he would not create any impediment or disturbance in the meeting of mother and their children. Certainly, mother is not permitted to carry them out from the premises.

The petitioner No. 3 is also restrained from indulging into any act of violence with the respondent no. 4 or with the corpus and in case she is found in violation of the order of this Court that is being passed today, she will be personally answerable to this Court.

It is made clear that dismissal of writ petition shall not preclude the petitioner from seeking remedy available to him in law. Any observation made by this Court, while deciding this writ petition, shall not come in the way of either party.

With the aforesaid observations and directions, the instant habeas corpus writ petition is disposed off.

Order Date :- 13.1.2020

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