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The Allahabad High Court comprising of Single Bench of Justice Yogesh Kumar Srivastava while dismissing a writ petition filed on behalf of two minor children, has observed that custody of minor with mother is a presumption that custody is not lawful & the direction of altering custody is only given in exceptional cases. 

“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 Bench noted. 

In the present petition for a writ of habeas corpus that has been filed on behalf of two minor children of age about 11 years and 5 years respectively, by one Ramesh Chandra Kanaujiya asserting himself to be their father and natural guardian. It is sought to be contended that the two minor children, who are living with respondent no. 4, their mother, are under her illegal custody, and accordingly Ramesh Chandra Kanaujiya, being the father, has claimed their custody.

“The records of the case reflect that earlier a Habeas Corpus Writ Petition No. 561 of 2020 (Meenu Devi Kanaujiya Vs. State of U.P. and 3 others) was filed by Ramesh Chandra Kanaujiya on behalf of his wife for a writ of habeas corpus by claiming that she was under an illegal detention. In the aforestated writ petition, pursuant to issuance of a rule nisi, the wife, Smt. Meenu Kanaujiya, was produced before the Court on 10.11.2020 and considering the stand taken by her, it was held that no case of illegal confinement or illegal detention had been made out and in view thereof the rule nisi stood discharged and the petition was dismissed.” - stated the petition.

The Learned counsel for the petitioners has not disputed the aforesaid fact with regard to the respondent no. 4 living separately and having her own independent source of income and the two minor children being under the care and custody of the respondent no. 4, their mother.

On the other hand the learned counsel for respondent contends that,

“the custody of the minor children with their mother in the facts and circumstances of the case cannot be stated to be illegal and any claim which is sought to be set up on behalf of the father with regard to guardianship or custody may be agitated before the appropriate forum and a petition for a writ of habeas corpus would not be entertainable in the facts of the case.”

He further relied upon the SC judgments in Mohammad Ikram Hussain vs. State of UP & ors and Kanu Sanyal  vs. District Magistrate Darjeeling and observed that,

"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.”

“Taking a similar view in the case of Sayed Saleemuddin vs. Dr. Rukhsana and others4, 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”- stated the petition

Taking into account the factual matrix of the case the court observed that,

“In a petition for a writ of habeas corpus concerning a minor child, the Court, in a given case, may direct to change the custody of the child or decline the same keeping in view the attending facts and circumstances. For the said purpose it would be required to examine whether the custody of the minor with the private respondent, who is named in the petition, is lawful or unlawful. In the present case, the private respondent is none other than the biological mother of the minor children. This being the fact, it may be presumed that the custody of the children with their mother is not unlawful. It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person - including father of the child, in exercise of writ jurisdiction. This would be so also for the reason that the other parent, in the present case, the father, can take resort to the substantive statutory remedy in respect of his claim regarding custody of the child.”

Thus, Bench while dismissing the petition held that,

“The contention which has been sought to be raised by the counsel for the petitioner with regard to the father's claim for custody and visitation rights, are matters which are to be agitated in appropriate proceedings.”

 Case Title: Master Tarun @ Akchhat Kumar And Another Vs. State Of U.P. And 3 Others