Ishika Saxena Minor And Another v. State Of U.P. And

certain terms. The parties were sent to the Mediation Center, but the report, that has arrived today, shows that they did not reach any agreement. A counter affidavit has been filed on behalf of the State. Smt. Jyoti Saxena, the fifth respondent, is present before the Court with Ishika Saxena, the detenue, who is a young child of one year and four months. She is clinging to her mother's lap. Learned counsel for the parties have made a statement at the Bar that they do not want to file any further affidavits. Admit. Heard forthwith. Heard Mr. Lal Ji Pandey, learned counsel for the petitioners, Mr. Shashi Shekhar Tiwari, learned A.G.A. on behalf of the State and Mr. Harish Chandra appearing on behalf of the respondent no. 5. This habeas corpus writ petition has been filed with a relief to the effect 2 HABC No. 895 of 2025 that the second petitioner's minor daughter, who has been taken away by the Police at the instance of his estranged wife, may be summoned and set at liberty, that is to say, restored to the father's custody. This, in effect, is the relief sought, which is rather clumsily worded. It is not in dispute that the fifth respondent and the second petitioner were married according to the Hindu rites on 18.09.2020 and in course of time, they were blessed with a daughter, Ishika, born on 8th May, 2024. The second petitioner alleges that his wife, the fifth respondent, treated him with cruelty and more than that, her parents. She left the parties' matrimonial home on

07.04.2025. The fifth respondent is also said to have left behind the parties' minor daughter with the second petitioner. The second petitioner has filed for divorce under Section 13 of the Hindu Marriage Act and the divorce petition is pending before the Family Court at Ghaziabad. On 15.09.2025, petitioner no. 2 received a call on his Mobile No. 870096234 at about 4:00 PM from the Mahila Police of a certain Pink Booth, part of the P.S. Loni Border, Ghaziabad. The police personnel directed the second petitioner to pay a sum of Rs. 20 Lacs to his wife, Jyoti and handover the parties' minor daughter to the wife. The police personnel, on the other hand, threatened the second petitioner with false implication in criminal cases, if he did not pay heed. An application was moved by the second petitioner regarding this odd phone call from the police, addressed to the Commissioner of Police, Ghaziabad. On 18.09.2025, at about 9:00 PM, police personnel from P.S. Loni Border, along with some unknown miscreants, forced their entry into the second petitioner's house when his mother was home alone and he was away. They are said to have abused the second petitioner's mother and forcibly taken away the parties' minor daughter. The second petitioner's mother called help on number 112, Police Control Room from Mobile No. 9650636788. It is the petitioners' case that the 112 number police facility did arrive at his house and asked him to go the police station and withdraw the application that he had made against the police personnel. The second petitioner and his mother approach the S.H.O., P.S. Loni Border in the midnight on the same day, but he asked them to come over the following day. Nothing came out of this exercise, and, therefore, the petitioner had instituted the present petition for a writ of habeas corpus, to 3 HABC No. 895 of 2025 seek back his daughter's custody. In para 10, 11 and 12 of the counter affidavit filed on behalf of the State, it is averred : "10. That in reply to the contents of paragraph No. 8, 9, 10, 10A & 11 of the writ petition it is humbly submitted that no event number has been presented by Petitioner No. 2 regarding the call made to 112. In truth, it is to be humbly submitted before the Hon'ble Court that a complaint No. 40014025049192 was filed on the IGRS portal by the petitioner No. 2's mother, Mrs. Renu Saxena, wife of Vinod Saxena. The complaint was investigated by Sub-Inspector Ankul Kumar, and the report was uploaded, thereby disposing of the complaint. As per the investigation, on 21.09.2025, the investigating officer inspected the incident site and recorded statements of complainant Mrs. Renu Saxena and opposite party Mrs. Jyoti, wife of Sagar Saxena.

11. That it is humbly submitted that the investigation revealed that the matter was a domestic dispute between mother-in-law (Mrs. Renu Saxena) and daughter-in-law (Mrs. Jyoti) and husband (Mr. Sagar Saxena), and no independent witness was available. The opposite party- Mrs. Jyoti stated that her mother-in-law did not treat her well, frequently quarreled over minor issues, and despite repeated requests to her husband Sagar Saxena, no appropriate action was taken. During her delivery, when her and her child's health deteriorated, no treatment was provided by her in-laws, and her mother Mrs. Kamlesh got her treated at GTB Hospital. She has been living at her maternal home in Rahul Gardener, Loni Border, 4 HABC No. 895 of 2025 Ghaziabad for the past six months. She also stated that she filed Petition No. 955/2025 under Section 24 of the Hindu Marriage Act for maintenance and expenses against her husband Sagar in the Family Court. Her daughter Ishika is very young, and Sagar's house is located behind the lane of her maternal home. On 18.09.2025, she brought Ishika from her in-laws' house because they were not getting her treated, and she was still ill. There was no abusive language or quarrel in the lane that day. Her mother-in-law filed the application to pressurize her and the police.

12. That it is humbly submitted that the investigation revealed that the complaint filed by Mrs. Renu Saxena was false. Ishika was taken by her mother Mrs. Jyoti around 9 PM on

18.09.2025. No miscreant abused or kidnapped Ishika. Ishika, aged about 1 year and 4 months, was taken by Mrs. Jyoti as her natural guardian for care. Mrs. Jyoti, being Ishika's mother, has the right to keep her. If the petitioner and his mother wish to keep Ishika, they may present their case before the Hon'ble Court. The application was filed to exert unnecessary pressure on the police and all allegations are baseless and false. The complaint of Mrs. Renu Saxena was closed in due accordance with law by uploading the report on the IGRS portal." From a perusal of the averments in the counter affidavit, which remain unrebutted in the absence of a rejoinder affidavit, it is apparent that the Police have denied the case of their officers carrying away the second petitioner's minor daughter and handing her over to the minor's mother. Rather, the facts they found show that it was the fifth respondent, who brought the minor child along with her on 18.09.2025, because they were 5 HABC No. 895 of 2025 not securing necessary treatment for her and the child was ill. Be as it may, it is difficult for this Court to enter into the thicket of facts whether it was the Police who picked up the child and gave it to mother, or the mother carried off the child herself. What is the relevant is that the child is aged one year and four months odd and has to be in the lap of one of the parents for sustenance, because she is of extremely tender age. At this age, a child, boy or a girl, needs the care of his/her mother more than that of his/her father. We have personally seen the minor child and the mother, and the bonding between them is very natural. On the other hand, the second petitioner appears to be rather so closely bonded with his own mother that we think that it is one of the hurdles in the parties staying together as husband and wife. We do not wish to say that the husband's mother does not need the attention that she deserves. What we wish to point out is that this appears to be a classical case of an intruding mother-in-law, who now wants the grandchild also with her, after the daughter-in-law has left home. Between the grandmother and the mother, certainly it is the mother who is entitled to take care of the child and have her custody. The husband is certainly not a choice, when it comes to welfare of the minor. In matters of custody, it is an age-old principle, well settled across generations of decisions in Court pronouncing on the right to custody, as distinct from guardianship itself, that welfare of the minor is of paramount importance. Section 17 of the Guardians and Wards Act envisages the same principle. If there has been remarkable unanimity in judicial opinion across years, decades and centuries, it is about the principle that in matters of custody, welfare of the minor is of paramount importance. There is almost unanimous opinion as well on the issue that for a young child under the age of five year or six years, the mother is generally the more suitable person out of two parents to hold custody. It is only in exceptional cases that the mother may be disqualified. These disqualifications, illustratively, may be if the mother is a convict or involved in a serious case, where, entrusting her with the custody of the child may be detrimental to his/her well being and upbringing. There is no case like this here. The mother is said to have passed her 6 HABC No. 895 of 2025 Class V examination which is rather scanty education, and the father has done his matriculate. There is no such marked difference between the education of the parents so as to render the father's education of particular benefit to the minor in her development. In totally of the circumstances, we are of the opinion that the mother, who has the custody of the minor daughter, need not be disturbed and the custody should remain with her. We, accordingly, dismiss this petition. October 17, 2025 A. V. Singh (Sanjiv Kumar,J.) (J.J. Munir,J.) AJAY VIKRAM SINGH High Court of Judicature at Allahabad

certain terms. The parties were sent to the Mediation Center, but the report, that has arrived today, shows that they did not reach any agreement. A counter affidavit has been filed on behalf of the State. Smt. Jyoti Saxena, the fifth respondent, is present before the Court with Ishika Saxena, the detenue, who is a young child of one year and four months. She is clinging to her mother's lap. Learned counsel for the parties have made a statement at the Bar that they do not want to file any further affidavits. Admit. Heard forthwith. Heard Mr. Lal Ji Pandey, learned counsel for the petitioners, Mr. Shashi Shekhar Tiwari, learned A.G.A. on behalf of the State and Mr. Harish Chandra appearing on behalf of the respondent no. 5. This habeas corpus writ petition has been filed with a relief to the effect 2 HABC No. 895 of 2025 that the second petitioner's minor daughter, who has been taken away by the Police at the instance of his estranged wife, may be summoned and set at liberty, that is to say, restored to the father's custody. This, in effect, is the relief sought, which is rather clumsily worded. It is not in dispute that the fifth respondent and the second petitioner were married according to the Hindu rites on 18.09.2020 and in course of time, they were blessed with a daughter, Ishika, born on 8th May, 2024. The second petitioner alleges that his wife, the fifth respondent, treated him with cruelty and more than that, her parents. She left the parties' matrimonial home on

07.04.2025. The fifth respondent is also said to have left behind the parties' minor daughter with the second petitioner. The second petitioner has filed for divorce under Section 13 of the Hindu Marriage Act and the divorce petition is pending before the Family Court at Ghaziabad. On 15.09.2025, petitioner no. 2 received a call on his Mobile No. 870096234 at about 4:00 PM from the Mahila Police of a certain Pink Booth, part of the P.S. Loni Border, Ghaziabad. The police personnel directed the second petitioner to pay a sum of Rs. 20 Lacs to his wife, Jyoti and handover the parties' minor daughter to the wife. The police personnel, on the other hand, threatened the second petitioner with false implication in criminal cases, if he did not pay heed. An application was moved by the second petitioner regarding this odd phone call from the police, addressed to the Commissioner of Police, Ghaziabad. On 18.09.2025, at about 9:00 PM, police personnel from P.S. Loni Border, along with some unknown miscreants, forced their entry into the second petitioner's house when his mother was home alone and he was away. They are said to have abused the second petitioner's mother and forcibly taken away the parties' minor daughter. The second petitioner's mother called help on number 112, Police Control Room from Mobile No. 9650636788. It is the petitioners' case that the 112 number police facility did arrive at his house and asked him to go the police station and withdraw the application that he had made against the police personnel. The second petitioner and his mother approach the S.H.O., P.S. Loni Border in the midnight on the same day, but he asked them to come over the following day. Nothing came out of this exercise, and, therefore, the petitioner had instituted the present petition for a writ of habeas corpus, to 3 HABC No. 895 of 2025 seek back his daughter's custody. In para 10, 11 and 12 of the counter affidavit filed on behalf of the State, it is averred : "10. That in reply to the contents of paragraph No. 8, 9, 10, 10A & 11 of the writ petition it is humbly submitted that no event number has been presented by Petitioner No. 2 regarding the call made to 112. In truth, it is to be humbly submitted before the Hon'ble Court that a complaint No. 40014025049192 was filed on the IGRS portal by the petitioner No. 2's mother, Mrs. Renu Saxena, wife of Vinod Saxena. The complaint was investigated by Sub-Inspector Ankul Kumar, and the report was uploaded, thereby disposing of the complaint. As per the investigation, on 21.09.2025, the investigating officer inspected the incident site and recorded statements of complainant Mrs. Renu Saxena and opposite party Mrs. Jyoti, wife of Sagar Saxena.

11. That it is humbly submitted that the investigation revealed that the matter was a domestic dispute between mother-in-law (Mrs. Renu Saxena) and daughter-in-law (Mrs. Jyoti) and husband (Mr. Sagar Saxena), and no independent witness was available. The opposite party- Mrs. Jyoti stated that her mother-in-law did not treat her well, frequently quarreled over minor issues, and despite repeated requests to her husband Sagar Saxena, no appropriate action was taken. During her delivery, when her and her child's health deteriorated, no treatment was provided by her in-laws, and her mother Mrs. Kamlesh got her treated at GTB Hospital. She has been living at her maternal home in Rahul Gardener, Loni Border, 4 HABC No. 895 of 2025 Ghaziabad for the past six months. She also stated that she filed Petition No. 955/2025 under Section 24 of the Hindu Marriage Act for maintenance and expenses against her husband Sagar in the Family Court. Her daughter Ishika is very young, and Sagar's house is located behind the lane of her maternal home. On 18.09.2025, she brought Ishika from her in-laws' house because they were not getting her treated, and she was still ill. There was no abusive language or quarrel in the lane that day. Her mother-in-law filed the application to pressurize her and the police.

12. That it is humbly submitted that the investigation revealed that the complaint filed by Mrs. Renu Saxena was false. Ishika was taken by her mother Mrs. Jyoti around 9 PM on

18.09.2025. No miscreant abused or kidnapped Ishika. Ishika, aged about 1 year and 4 months, was taken by Mrs. Jyoti as her natural guardian for care. Mrs. Jyoti, being Ishika's mother, has the right to keep her. If the petitioner and his mother wish to keep Ishika, they may present their case before the Hon'ble Court. The application was filed to exert unnecessary pressure on the police and all allegations are baseless and false. The complaint of Mrs. Renu Saxena was closed in due accordance with law by uploading the report on the IGRS portal." From a perusal of the averments in the counter affidavit, which remain unrebutted in the absence of a rejoinder affidavit, it is apparent that the Police have denied the case of their officers carrying away the second petitioner's minor daughter and handing her over to the minor's mother. Rather, the facts they found show that it was the fifth respondent, who brought the minor child along with her on 18.09.2025, because they were 5 HABC No. 895 of 2025 not securing necessary treatment for her and the child was ill. Be as it may, it is difficult for this Court to enter into the thicket of facts whether it was the Police who picked up the child and gave it to mother, or the mother carried off the child herself. What is the relevant is that the child is aged one year and four months odd and has to be in the lap of one of the parents for sustenance, because she is of extremely tender age. At this age, a child, boy or a girl, needs the care of his/her mother more than that of his/her father. We have personally seen the minor child and the mother, and the bonding between them is very natural. On the other hand, the second petitioner appears to be rather so closely bonded with his own mother that we think that it is one of the hurdles in the parties staying together as husband and wife. We do not wish to say that the husband's mother does not need the attention that she deserves. What we wish to point out is that this appears to be a classical case of an intruding mother-in-law, who now wants the grandchild also with her, after the daughter-in-law has left home. Between the grandmother and the mother, certainly it is the mother who is entitled to take care of the child and have her custody. The husband is certainly not a choice, when it comes to welfare of the minor. In matters of custody, it is an age-old principle, well settled across generations of decisions in Court pronouncing on the right to custody, as distinct from guardianship itself, that welfare of the minor is of paramount importance. Section 17 of the Guardians and Wards Act envisages the same principle. If there has been remarkable unanimity in judicial opinion across years, decades and centuries, it is about the principle that in matters of custody, welfare of the minor is of paramount importance. There is almost unanimous opinion as well on the issue that for a young child under the age of five year or six years, the mother is generally the more suitable person out of two parents to hold custody. It is only in exceptional cases that the mother may be disqualified. These disqualifications, illustratively, may be if the mother is a convict or involved in a serious case, where, entrusting her with the custody of the child may be detrimental to his/her well being and upbringing. There is no case like this here. The mother is said to have passed her 6 HABC No. 895 of 2025 Class V examination which is rather scanty education, and the father has done his matriculate. There is no such marked difference between the education of the parents so as to render the father's education of particular benefit to the minor in her development. In totally of the circumstances, we are of the opinion that the mother, who has the custody of the minor daughter, need not be disturbed and the custody should remain with her. We, accordingly, dismiss this petition. October 17, 2025 A. V. Singh (Sanjiv Kumar,J.) (J.J. Munir,J.) AJAY VIKRAM SINGH High Court of Judicature at Allahabad