Court No. - 49
Case :- HABEAS CORPUS WRIT PETITION No. - 351 of 2021
Petitioner :- Shaheen And 2 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ram Pratap Yadav,Atmaram Nadiwal,Devbratt Yadav,Dinesh Kumar Yadav,Ravindra Kumar Yadav,Yashpal Yadav Counsel for Respondent :- G.A.,Dinesh Kumar Yadav
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ram Pratap Yadav, learned counsel for petitioners along with Shaheen and Sri Dinesh Kumar Yadav, learned counsel for respondent along with Smt. Zareena Wahid- respondent no. 6.
2. This petition has been filed seeking issuance of Writ of Habeas Corpus by petitioner no. 1 in regard to petitioner nos. 2 and 3, who are respectively minor son and daughter of petitioner no. 1 and are in custody of respondent no. 6-Smt. Zareena Wahid, grandmother of minor children.
3. Brief facts of this case are that petitioner no. 1 was married to Late Azam Aziz on 29.10.2011 in accordance with Muslim Customs and out of the said wedlock, two children namely, petitioner no. 2 and 3 were respectively born on 20.10.2012 and 08.02.2018.
4. Husband of petitioner no. 1 died on 21.04.2021 and due to this unfortunate incident, she came to her parent's house for discharging the period of 'iddat'. Initially, petitioner no. 1 has shown her reluctance to visit her in-laws place in the name of her 'iddat', but as per the Commentary on Muslim Law (as applied in India by Dr. R.K. Sinha, VIth Edition, Central Law Agency), 'iddat' is an Arabic word and its literal meaning is 'counting'. 'Counting' here means counting the dates of possible conception to ascertain whether a woman is pregnant or not after dissolution of the marriage either by divorce or due to death of her husband. During this period, the widow is required to live a pure and simple life and she cannot marry again. The object of 'iddat' is to ascertain the paternity of a possible conception from formal husband. To overcome this difficulty, Muslim Law provides that where a marriage is dissolved by divorce or death of the husband, the woman cannot remarry before the expiry of a specified period called 'iddat' and this period in case of dissolution of marriage by death of husband is four months and ten days, however, it is evident from the Commentary that purpose of 'iddat' is to lead the life of purity and it does not mean that a widow cannot stay in the household of her in-laws and take care of her children during the period of 'iddat'.
5. According to petitioner no. 1, her children were detained by the sons of the brother of her father-in-law and she had though moved two applications addressed to the Superintendent of Police, Azamgarh on 26.04.2021 and 29.04.2021, but no action was taken, therefore, present writ petition has been filed.
6. This Court had directed production of children from the custody of private respondents when respondent no. 6 had appeared before this court on 19.07.2021 and 26.07.2021. This court personally interacted with the children, especially, the elder one namely, Aksa Aziz daughter of Late Azam Aziz and tried to ascertain their willingness to go with their mother, who is admittedly residing in a Village namely, Dhaurarhra, Police Station-Jiyanpur, Tehsil-Sagadi, District-Azamgarh, but their willingness was not forthcoming and both the children were reluctant to move away from the company and shadow of their grandmother. In fact, petitioner no. 2 categorically denied going with her mother and expressed that there is danger to not only her life and liberty, but of both the brother and the sister.
7. At the instance of this court, an arrangement was made so that petitioner no. 1 may be able to live with her children, as respondent no. 6 gave her consent for such arrangement and had assured this court of all possible help to carve out a safe and secured space within her shared household for her daughter-in-law and petitioner nos. 2 and 3, but it transpired that petitioner no. 1 could not adjust to the aforesaid request though provided by respondent no. 6 and initially accepted by petitioner no. 1, but later on, she refused to reside with her mother-in-law to take care of her children and their future.
8. Paramount consideration is to secure the future of minor children, aged about 9 and 3½ years respectively.
9. Respondent's counsel has placed reliance on the judgment of a Coordinate Bench of this Court in case of Rachhit Pandey (Minor) and Another vs. State of U.P. and Others; (2021) 2 ADJ 320, where in deciding a Writ of Habeas Corpus, a Coordinate Bench in Para Nos. 14, 15, 16, 17, 18 and 19 has held which reads as under:-
" 14. The writ of habeas corpus is a prerogative writ, an extraordinary remedy, evolved under the common law and incorporated in our constitutional law, having the objective to protect and safeguard individual liberty.
15. In "Judicial Remedies in Public Law"2, the writ of habeas corpus has been described as follows:- "The writ of habeas corpus is a writ of right but not of course. This means that the applicant has to show a prima facie case that he is being unlawfully detained."
16. The above principle with regard to a writ of habeas corpus being a writ of right and not a writ of course and that it may be granted only on reasonable ground or probable cause being shown, has been reiterated in Mohammad Ikram Hussain v State of U.P. and other, (1964) AIR SC 1625 Kanu Sanyal v District Magistrate Darjeeling, (1973) 2 SCC 674.
17. The nature and scope of writ of habeas corpus was considered in the case of Kanu Sanyal (supra) and the Supreme Court after tracing the development of the writ of habeas corpus by Common-Law Courts in England held that the writ of habeas corpus is essentially a procedural writ dealing with the machinery of justice but not the substantive law with an object to secure release of a person who is illegally restrained of his liberty.
18. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
19. In the case of detention of a child or a minor the only person competent to move the court for a writ of habeas corpus would be one who is entitled to the custody of the child."
10. Further, in Para Nos. 31 to 38, Hon'ble Coordinate Bench observed as under:-
"..............31. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan v State (NCT of Delhi) and another, (2017) 8 SCC 454 and it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.
32. In the context of the facts of the case, it was noted that the private respondent therein being the biological mother of the minor and a natural guardian, it could be presumed that the custody of the minor with his/her mother was lawful, and in such a case only in an exceptionable situation the custody of the minor may be ordered to be taken away from the mother for being given to any other person including the father of the child, in exercise of writ jurisdiction. The observations made in the judgment in this regard are as follows:-
"44. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court. On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana (2001) 5 SCC 247, has held that the principal duty of the Court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42, it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court (see Paul Mohinder Gahun Vs. State (NCT of Delhi) & Ors. 2004 SCC OnLine Del 699, relied upon by the appellant). It is not necessary to multiply the authorities on this proposition.
x x x 47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child."
33. In the aforesaid judgment, the view taken in an earlier decision in the case of Sayed Saleemuddin v Dr. Rukhsana and others, (2001) 5 SCC 247 was taken note of. In the case of Sayed Saleemuddin (supra) while deciding the scope of a habeas corpus petition seeking transfer of custody of children from father to mother it was held that in such cases the principal consideration for the court would be to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of some one else. It was stated thus:-
"11. it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court "
34. The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others v Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows:-
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
x x x
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. 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."
35. It is therefore seen that in an application seeking a writ of habeas corpus for custody of a minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.
36. It is well settled that in matters of custody the welfare of child would be of a paramount consideration and the role of the court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction.
37. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, would be qualified only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.
38. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the Digitally signed by Justice Vivek Agarwal Date: 2021.09.02 10:30:48 IST Reason: Document Owner Location: High Court of Judicature at Allahabad appropriate court."
11. When examined on the touchstone of the aforesaid judgment of a Coordinate Bench, so also the law laid down in case of Ali Azhar vs. State of U.P.; (2017) 3 ADJ 703, it will be appropriate to take into consideration the aspect of welfare of the children. Petitioner no. 1 has accepted that there is dearth of good schools at her native place namely, Village-Dhaurarhra. She further admits that her children petitioner nos. 2 and 3 are taking education in one of the best schools at District- Azamgarh and also coupled with the fact that petitioner nos. 2 and 3, especially, petitioner no. 2 has shown her willingness to remain with her grandmother, it cannot be said that children are under illegal custody of respondent nos. 4 and 5, as has been sought to be made out by petitioner no. 1, but are in fact, under lawful custody of their grandmother-respondent no. 6. Therefore, when examined from this perspective, paramount interest and welfare of the children requires that for the time being they be allowed to remain in custody and care of respondent no. 6 and continue their education whereas petitioner no. 1-mother of petitioner nos. 2 and 3 be given visitation rights to visit her children.
12. Accordingly, this court is of the opinion that a Writ of Habeas Corpus is not to be issued in a matter of course, especially, when welfare of the children prima facie appears to be more secured in the hands of grandmother. Thus, it is directed that petitioner no. 1 shall have a right to visit her children at Azamgarh on every weekend i.e., Saturday and Sunday and will be permitted by respondent no. 6 to spend time in her household where respondent no. 6 shall ensure safety and security to petitioner no. 1, so that petitioner no. 1 can meet her children namely, petitioner nos. 2 and 3 in a safe and congenial environment on every weekend, so that the bond of mother and child continues to grow and blossom and is not allowed to wilt on account of distance or time lag.
13. It is further directed that petitioner no. 1 shall have a right to seek review of this order after expiry of one year if there are any change in circumstances or such circumstances are created with passage of time or click of destiny, so to allow petitioner no. 1 to provide, if not better, then at least at par education, as is available in Tehsil-Sadarm District-Azamgarh, where petitioner nos. 2 and 3 are residing presently and taking their education.
14. In above terms, writ petition is disposed off. Order Date :- 12.8.2021 Vikram/-A.P.