Master Kartik Thru. His Mother Deepa Gupta v. State Of. U.P. Thru. Prin. Secy. Home Deptt. Lko. And

opposite parties no. 4 & 5, namely, Smt. Chanda Gupta and Sri Saurabh Jain respectively. Mother of the child Smt. Deepa Gupta, who has filed this Habeas Corpus Writ Petition, is also present before this Court.

2. Heard Sri Ankur Pandey, learned counsel for the petitioner, Sri Satyendra Srivastava, learned AGA representing opposite parties no. 1 to 3 and Sri Pankaj Kumar Pandey, learned counsel for the opposite parties No. 4 & 5.

3. By means of the instant petition seeking issuance of a writ of habeas corpus, production of the minor Master Katrik before this Court was sought. It is stated in the writ petition that Smt. Deepa Gupta is the mother of the child and her husband Sri Suraj Lal is father of the child. It is stated that when Smt. Deepa Gupta was pregnant and her mother Sheela Devi was admitted to the hospital and the opposite parties no. 4 & 5, who were bua and phupha of the child, had taken away the child to their residence for ensuring better care of the child during that period. After regaining normalcy, the mother of the child requested the opposite parties no. 4 & 5 for returning the custody of her son, but they kept on avoiding the same. 2 HABC No. 285 of 2024

4. The opposite parties no. 4 & 5 have filed a counter affidavit opposing the writ petition and they have inter alia pleaded that the parents of the child had handed over his custody to them willingly and happily and now they are demanding return of his child after 2 years and 8 months as the mother of the child had delivered three other children, all of whom are daughters whereas the alleged detenue is a son.

5. The learned counsel for the petitioner has placed reliance on the judgment of Shazia Aman Khan & Anr. v. State of Orissa & Ors: (2024) 7 SCC 564, wherein the Hon’ble Supreme Court referred to a precedent in the case of Nil Ratan Kundu v. Abhijit Kundu: (2008) 9 SCC 413, wherein it was held that: - “Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to the custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary intellectual health, comfort, development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor. contentment, education, ***

55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the 3 HABC No. 285 of 2024 controlling consideration governing the custody of children is the welfare of children and not the right of their parents.” (Emphasis Supplied)

6. It is true that in matters concerning custody of children, the court has to keep into consideration the welfare of the child. In the present case, the parents of the child are staying together. It is claimed that custody of the child had been handed over to the sister of the child’s father while her mother was pregnant and her grandmother was admitted to the hospital. It is claimed that after the situation regained normalcy, parents of the child had demanded return of his custody.

7. The opposite parties no. 4 & 5, who are Bua and Phupha of the child, claim that the child had been handed over to them permanently. However, they do not dispute that the child has not been adopted by them as no adoption deed has been executed. Therefore, the child has no legal rights in the family of the opposite parties no. 4 & 5.

8. In these circumstances, it cannot be said that welfare of the child will not be ensured if he remains in the care and custody of his mother and father and it will be better ensured in the custody of his Bua and Phupha. In the counter affidavit filed by the opposite parties no. 4 & 5 have filed a counter affidavit, there is absolutely no pleading to show that welfare of the child will not be secured if he lives with his parents.

9. The mother of the child is presently aged 26 years and his father is aged 31 years. The father earns his livelihood by doing manual labour. The opposite party no. 5 states that he is working privately under an agent working in the post office. There does not appear to be a very remarkable difference in the financial and social status of the parties who are closely related to each other.

10. In these circumstances, it appears that parents of the child are 4 HABC No. 285 of 2024 also capable of taking care of their son, more particularly this fact has not been disputed in the counter affidavit filed by the opposite parties no. 4 & 5.

11. In these circumstances, this Court is of the considered view that child deserves to be in the care and custody of his parents and his continued custody by the opposite parties no. 4 & 5 is not justified.

12. In view of the foregoing discussion, the writ petition is allowed. The opposite parties no. 4 & 5 are directed to hand over custody of the child Master Kartik to his mother Smt. Deepa Gupta forthwith.

13. The parties will bear their own cost of litigation. August 25, 2025 Pradeep/- (Subhash Vidyarthi,J.) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

opposite parties no. 4 & 5, namely, Smt. Chanda Gupta and Sri Saurabh Jain respectively. Mother of the child Smt. Deepa Gupta, who has filed this Habeas Corpus Writ Petition, is also present before this Court.

2. Heard Sri Ankur Pandey, learned counsel for the petitioner, Sri Satyendra Srivastava, learned AGA representing opposite parties no. 1 to 3 and Sri Pankaj Kumar Pandey, learned counsel for the opposite parties No. 4 & 5.

3. By means of the instant petition seeking issuance of a writ of habeas corpus, production of the minor Master Katrik before this Court was sought. It is stated in the writ petition that Smt. Deepa Gupta is the mother of the child and her husband Sri Suraj Lal is father of the child. It is stated that when Smt. Deepa Gupta was pregnant and her mother Sheela Devi was admitted to the hospital and the opposite parties no. 4 & 5, who were bua and phupha of the child, had taken away the child to their residence for ensuring better care of the child during that period. After regaining normalcy, the mother of the child requested the opposite parties no. 4 & 5 for returning the custody of her son, but they kept on avoiding the same. 2 HABC No. 285 of 2024

4. The opposite parties no. 4 & 5 have filed a counter affidavit opposing the writ petition and they have inter alia pleaded that the parents of the child had handed over his custody to them willingly and happily and now they are demanding return of his child after 2 years and 8 months as the mother of the child had delivered three other children, all of whom are daughters whereas the alleged detenue is a son.

5. The learned counsel for the petitioner has placed reliance on the judgment of Shazia Aman Khan & Anr. v. State of Orissa & Ors: (2024) 7 SCC 564, wherein the Hon’ble Supreme Court referred to a precedent in the case of Nil Ratan Kundu v. Abhijit Kundu: (2008) 9 SCC 413, wherein it was held that: - “Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to the custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary intellectual health, comfort, development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor. contentment, education, ***

55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the 3 HABC No. 285 of 2024 controlling consideration governing the custody of children is the welfare of children and not the right of their parents.” (Emphasis Supplied)

6. It is true that in matters concerning custody of children, the court has to keep into consideration the welfare of the child. In the present case, the parents of the child are staying together. It is claimed that custody of the child had been handed over to the sister of the child’s father while her mother was pregnant and her grandmother was admitted to the hospital. It is claimed that after the situation regained normalcy, parents of the child had demanded return of his custody.

7. The opposite parties no. 4 & 5, who are Bua and Phupha of the child, claim that the child had been handed over to them permanently. However, they do not dispute that the child has not been adopted by them as no adoption deed has been executed. Therefore, the child has no legal rights in the family of the opposite parties no. 4 & 5.

8. In these circumstances, it cannot be said that welfare of the child will not be ensured if he remains in the care and custody of his mother and father and it will be better ensured in the custody of his Bua and Phupha. In the counter affidavit filed by the opposite parties no. 4 & 5 have filed a counter affidavit, there is absolutely no pleading to show that welfare of the child will not be secured if he lives with his parents.

9. The mother of the child is presently aged 26 years and his father is aged 31 years. The father earns his livelihood by doing manual labour. The opposite party no. 5 states that he is working privately under an agent working in the post office. There does not appear to be a very remarkable difference in the financial and social status of the parties who are closely related to each other.

10. In these circumstances, it appears that parents of the child are 4 HABC No. 285 of 2024 also capable of taking care of their son, more particularly this fact has not been disputed in the counter affidavit filed by the opposite parties no. 4 & 5.

11. In these circumstances, this Court is of the considered view that child deserves to be in the care and custody of his parents and his continued custody by the opposite parties no. 4 & 5 is not justified.

12. In view of the foregoing discussion, the writ petition is allowed. The opposite parties no. 4 & 5 are directed to hand over custody of the child Master Kartik to his mother Smt. Deepa Gupta forthwith.

13. The parties will bear their own cost of litigation. August 25, 2025 Pradeep/- (Subhash Vidyarthi,J.) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench