HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 14
Case :- HABEAS CORPUS No. – 16973 of 2019
Petitioner :- Master Tanishq Thru. His Father Vinay Rajwani
Respondent :- The State Of U.P. Thru. Prin. Secy. Home Ors.
Counsel for Petitioner :- Nadeem Murtaza,Sheeran Mohiuddin Alavi
Counsel for Respondent :- G.A.,Deepak Panjwani,Gyan Singh Chauhan,Prashant Pandey
Hon’ble Chandra Dhari Singh,J.
This Habeas Corpus Petition has been filed on behalf of detenue/petitioner Master Tanishq aged 03 years through his father and next friend Vinay Rajwani with a prayer for issuing a writ in the nature of Habeas Corpus directing respondents to produce the detenue/petitioner Master Tanishq and set free the petitioner from the clutches of opposite party no.5 and allow to live with his father.
Sri Nadeem Murtaza, learned counsel for the detenue/petitioner Master Tanishq has prayed that the matter may be referred to the Mediation and Conciliation Centre of this Court as there is a great chance for the settlement between the parties.
Perusal of order-sheet reveals that mediation proceedings is already going on in Delhi Mediation Centre on a petition filed by respondent no.5 before Hon’ble the Apex Court.
On 16.12.2019, when the case was taken up, this court has tried to persuade Smt. Neetu @ Neeta Behrani @ Pankhudi Rajwani to refer the matter to the Mediation Centre of this Court, but she denied for the same.
In Rajesh K. Gupta v/s Ram Gopal Agarwala, AIR 2005 SC 2426, in paragraph 7 Hon’ble Apex Court held that “it is well settled 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.”
The minor child aged three years of age and is in loving care of mother which should not be denied to him. Section 6 of the Guardian and Wards Act constitutes father as natural guardian of minor son but said provision cannot supersede paramount consideration as to what is conducive to welfare of minor. It is settled law that while considering the custody of a minor child, welfare of the child is paramount consideration.
In view of the above, the Habeas Corpus petition is dismissed.
However, liberty is granted to the petitioner to approach the appropriate forum under the Guardian and Wards Act for the custody of the child.
Order Date :- 27.2.2020