HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 84
Case :- HABEAS CORPUS WRIT PETITION No. - 467 of 2021
Petitioner :- Vahin Saxena (Minor Corpus) And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Piyush Dubey
Counsel for Respondent :- G.A.,Sanjay Singh
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Piyush Dubey, learned counsel for the petitioners, Sri Sanjay Singh, learned counsel for respondent no.4 and Ms. Sushma Soni, learned Additional Government Adovate appearing for State respondents.
2. The petitioner no.2 asserting himself to be the father of petitioner no.1-corpus, has filed the present habeas corpus petition alleging that the corpus is under illegal custody of his mother-respondent no.4.
3. As per the pleadings in the petition, the petitioner no.1 is stated to have been born in the year 2012. On 6.01.2019, the respondent no.4 is said to have left her matrimonial home along with her minor child-petitioner no.1 and since then he is with his mother-respondent no.4. A divorce petition, registered as Case No. 1714/2020, is stated to be pending between the parties before the Principal Judge, Family Court, Agra.
4. Pursuant to the rule nisi issued on 23.7.2021, the petitioner no.1-corpus has been produced in court by his mother-respondent no.4, and they have been identified by Sri Sanjay Singh, learned counsel for the respondent no.4.
5. Counsel for the parties do not dispute the fact that the child being a minor, it would be very difficult to ascertain his wishes and matters relating to custody and guardianship may have to be decided by the Court in exercise of its parens patriae jurisdiction i.e. looking into the welfare of the child.
6. Learned Additional Government Advocate has interacted with the child, in Court, and submits that child has stated that he is living comfortably with the respondent no.4, his mother, under her care and guardianship. The child has stated that he is being taken good care of and is being accorded love, affection and guardianship. There is nothing to suggest that the child is under any kind of threat or coercion or that he is under any kind of illegal detention.
7. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain vs. State of U.P. and others1 and Kanu Sanyal vs. District Magistrate Darjeeling2.
8. 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 Sayed Saleemuddin vs. Dr. Rukhsana and others3, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:-
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