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Allahabad High Court
Km. Aradhya Minor Throu.Her Mother Smt. … vs State Of U.P.Throu.S.S.P.Lucknow And … on 26 February, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. – 2024:AHC-LKO:17016
Court No. – 16
Case :- HABEAS CORPUS WRIT PETITION No. – 27843 of 2019
Petitioner :- Km. Aradhya Minor Throu.Her Mother Smt. Pooja Gupta
Respondent :- State Of U.P.Throu.S.S.P.Lucknow And Another
Counsel for Petitioner :- Pal Singh Yadav,Prathama Singh
Counsel for Respondent :- G.A.,Nasreen Bano,Sri Avadhesh Mishra
Hon’ble Shamim Ahmed,J.
List has been revised and the case is being taken up in the revised call of the list.
Heard Ms. Prathama Singh, learned counsel for the petitioner as well as Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the record.
This Habeas Corpus Writ Petition has been filed seeking following relief:-
“issue a writ in the nature of Habeas Corpus commanding the opposite parties thereby directing the opposite party no.2 to produce the corpus of petitioners/detenue before this Hon’ble Court and after recording their statements, they may allow to live with the person of their own choice.”
Learned counsel for the petitioner submits that the petitioner is mother of the minor children and the father has illegally detained the minor children with him, thus, this Court may issue a direction in this regard so that the custody of the minor children be given to the mother, the next friend.
On 01.12.2021, a co-ordinate Bench of this Court had passed the following order:-
“The case is called out.
Learned counsel for the petitioner Sri Pal Singh Yadav, Advocate, learned counsel for the opposite party no.4, Sri Avadhesh Mishra, Advocate and learned A.G.A. for the State Sri Anurag Singh Chauhan, Advocate are present in the Court.
The detenues Km. Aradhya and Km. Kavya both are the daughters of the Ramesh Gupta and his wife Smt. Pooja Gupta. They are minor girl children presently aged about 9 years and 8 years respectively. The corpus Km. Hansika who is presently a girl child of 4 to 5 years in age, is with the mother, Smt. Pooja Gupta. The parties, namely, the petitioner’s next friend “Pooja Gupta” and opposite party no.3 “Ramesh Gupta” are present before the Court in person with children.
Presently, there is no dispute as to the guardianship as the petition on behalf of the Smt. Pooja Gupta is filed for the relief of Habeas Corpus of three children and handing over of custody to her. The relief as prayed in the petition is quoted hereunder:-
“Issue a writ in the nature of HABEAS CORPUS commanding the opposite parties thereby directing the opposite party no.2 to produce the corpus of petitioners/detenue, before this Hon’ble Court and after recording their statements, they may allow to live with the person of their own choice.”
The aforesaid husband and wife, the parents of the corpus (the three minor children) are at serious differences. The husband has filed a petition before the Principal Judge, Family Court, Lucknow under Section 9 of the Hindu Marriage Act, 1955 for the relief of Restitution of Conjugal Rights and the wife has lodged a first information report under Section 323 I.P.C. The husband i.e. opposite party no.4, namely, Ramesh Gupta is ready and willing to get back the next friend of the corpus, namely, Pooja Gupta, the petitioner in his cohabitation in their matrimonial home where he use to reside with rest of the two children, namely, Km. Aradhya and Km. Kavya. The child, namely, Km. Hansika is the only girl child, who is about the age of 5 years and very much attached with her mother. So far as, the second daughter, Km. Kavya, aged about 7 to 8 years is concerned, she is very much attached with her father and only on having heard the conversation with regard to the order of their custody to handover to the mother, she is much embarrassed and weeping embracing her father Ramesh Gupta. The child, Km. Aradhya who is aged about 9 years is also languishing in between the dilemma as to with whom she would like to go and remain in custody. She also wants that her father must be with her in the nights then only she would like to be with mother in day time.
Pooja Gupta, the mother of the children is insistent and resistant over the question of moving back in the cohabitation of father of the children and she wants exclusive custody of them without sharing with the father. This is also important to note here that the mother, Pooja Gupta is doing a private job and earning about Rs.5,000/- per month. The two children residing with father are of age when they deserves to go for studying and getting education for their future life. The father of the children is doing work of selling clothes as a patri shop owner in the vicinity of Municipal Corporation, Lucknow.
Children are of much tender age, their custody cannot be transplanted from one party to another at this moment, therefore, custody shall remain as such it is extant with the parents. The girl child, namely, Km. Aradhya and Km. Kavya will remain in the custody of father Ramesh Gupta whereas the girl child, namely, Km. Hansika aged about 4 to 5 years will remain in the custody of the mother, as she is.
Counter affidavit is not filed.
Learned counsel for the opposite party no.4 may file the counter affidavit within ten days, providing copy thereof to learned A.G.A. for the State and learned counsel for the petitioner.
Rejoinder affidavit, if any, may also be filed within next one week thereafter, providing copy thereof to learned counsel for the opposite party no.4 and learned A.G.A. for the State.
List thereafter for argument in the case so as to decide the right of custody of children to any one of the natural guardian of the children depending on their interest and welfare.
List this case on 21.12.2021 for argument.
The opposite party no.4, namely, Ramesh Gupta is directed to keep the children with him at his residence in Lucknow and will not transmit them to any other place out of city or out of State.
The personal appearance of opposite party no.3, Sri Pramod Kumar Bharti (PNO No.192469770), Sub Inspector and Ms. Surabhi Sagar (PNO No.192530024), Lady Constable, Police Station Gudamba, District Lucknow is discharged. ”
Learned A.G.A.-I for the State submits that the relief sought in this Habeas Corpus Writ Petition could not be granted by this Court as the mother of the minor children could not be able to point out any illegality or any infirmity regarding the custody with the father. Thus, the prayer made in this petition could not be granted by this Court and if the mother wants custody of the minor child, then the remedy lies before the appropriate forum under the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 for claiming the custody of minor children in accordance with law.
After some argument, learned counsel for the petitioner submits that she may be permitted to approach the competent court in accordance with law under the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 for claiming the custody of minor children.
Accordingly, the present writ petition is disposed of with liberty to the petitioner to approach the appropriate forum in accordance with law for claiming the custody of minor child.
Order Date :- 26.2.2024
Saurabh
