HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 14
Case :- HABEAS CORPUS No. – 35534 of 2019
Petitioner :- Master Ali Ors. Thru. Mother Smt. Najiya Parveen
Respondent :- State Of U.P. Thru. Secy. Home Lko. Ors.
Counsel for Petitioner :- Amar Singh
Counsel for Respondent :- G.A.
Hon’ble Chandra Dhari Singh,J.
Vakalatnama filed by Sri Abhishek Srivastava, Advocate on behalf of respondent no.4 in court is taken on record.
This Habeas Corpus Petition has been filed on behalf of detenue/petitioners Master Ali; Km. Ilma and Master Afzal through her mother Smt. Najiya Parveen contending that the detenues are minor and they are being illegally detained against their wishes by respondent no.4 the father. Hence, a writ of Habeas Corpus petition be issued directing the respondents to produce the detenue/petitioner before this Court and set them at liberty.
On 13.01.2020, this Court has passed the following order :
“The instant Habeas Corpus Petition has been filed for production of Master Ali, aged about 7 years, Km. Ilma, aged about 4 years and Master Afzal, aged about 2 years through their mother/legal guardian Smt. Najiya Parveen, wife of Shakeel (respondent no. 4) with the allegation that the respondent no. 4 used to torture the petitioner-Najiya Parveen for demand of dowry and also ousted her from his house. It has further been alleged that the petitioner Master Ali, Km. Imla and Master Afzal are in illegal custody of the respondent no. 4. It has further been alleged that she is their mother and being a natural guardian, the detenues be set at liberty and be allowed to go with her.
On 19.12.2019, following order was passed:-
1. Notice on behalf of respondent Nos.1 to 3 has been accepted by learned A.G.A.
2. Steps to be taken by tomorrow for service of notice on respondent No.4.
3. List this case on 13.01.2020.
4. It is directed that on the next date of listing of this petition, S.H.O., Police Station Gosainganj will ensure the presence of three detenues, Master Ali, Km.Ilma, Master Afzal who are allegedly in the custody of respondent No.4.
It is also directed that the mother of three children, Smt. Najiya Parveen and respondent No.4 shall also remain present till the next date of listing of the case.
In pursuance of aforesaid direction, respondent no. 4, Mohd. Shakeel is present before this Court with Master Ali, Km. Ilma and Master Afzal who were produced by S.I. Dileep Kumar Mishra and Lady Const. Km. Priti, P.S. Gosaiganj, District Lucknow.
Upon inquiry, Master Ali told that his name is Ali and he is now residing with his father Mohd. Shakeel. Upon further inquiry, he further told that he is studying as well as co-operating with his father in the business of selling vegetables. He has also told that he is aged about 10 years and he wants to reside with his father.
Upon inquiry, Km. Ilma told that her name is Ilma and she told that her age as 7 years. She further told that she is now living with his father (respondent no. 4) and she also told that she wants to live with her father.
One Master Afzal, aged about 2 years is not able to speak anything.
During hearing, respondent no. 4 handed over the custody of Master Afzal (infant), aged about 2 years to Smt. Najiya Parveen (mother of Master Afzal) with his own free will and consent.
Respondent no. 4-Mohd. Shakeel submits that he has not engaged any counsel and he wants to put his further case through counsel, as such, he may be permitted a week’s time to file a counter affidavit.
List this case on 28th January, 2020. Meanwhile, learned counsel for the opposite parties may file counter affidavit, if any.
As the petitioners have duly been identified, hence, the personal appearance of petitioners no. 1, 2 and 3 are hereby exempted till further order.”
Learned counsel for the detenue petitioner has submitted that this court vide order dated 13.01.2020 has given the custody of Master Afzal to the mother Smt. Najiya Parveen, however, the other detenues petitioners no.1 2 namely Master Ali and Km. Ilma are still in the custody of respondent no.4 – the father. Therefore, she prays that this Court may direct to respondent no.4 to handover the custody of the corpus detenues petitioners no. 1 2 to the mother i.e. Smt. Najiya Parveen as they both are minor.
Per contra, learned counsel for respondent no.4 has submitted that the present Habeas Corpus Petition is not maintainable as the opposite party no.4 (father) is the legal father of the detenue petitioners no. 1 2 and there are no illegal detention of the corpus. He has also submitted that the mother has the remedy of filing an application before the court below under the Guardian and Wards Act for the custody of the minor child.
Learned counsel for the State has also supported the version of the learned counsel for respondent no.4.
I have heard learned counsel for the parties and perused the record.
It is admitted fact that respondent no.4 is the legal father of detenues petitioners no. 1 2. The detenues were present in court on the last date of listing i.e. on 13.01.2020 and they expressed their desire to live with their father Mohd. Shakeel.
In Rajesh K. Gupta v/s Ram Gopal Agarwala, AIR 2005 SC 2426, Hon’ble the Apex Court has held that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties.
Since custody of detenue petitioner no.3 Master Afzal (infant) aged 02 years has been given to the mother vide order of this Court dated 13.01.2020 and detenue petitioners no.1 2 have expressed their desire to live with their father, no further direction is required to be passed.
In view of the above, this Habeas Corpus Petition is disposed of.
However, liberty is given to the petitioner Smt. Najiya Parveen to move appropriate application before the court below under the Guardian and Wards Act for custody of the minor child.
Order Date :- 28.1.2020