Kavya Mishra (Minor) Thru. Her Father Natural Guardian Umesh Kumar Mishra @ Umesh Kumar vs State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Lko. And 3 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
HABEAS CORPUS WRIT PETITION No. - 411 of 2026
Kavya Mishra (Minor) Thru. Her Father Natural
Guardian Umesh Kumar Mishra @ Umesh
Kumar .....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Deptt. Of Home
U.P. Lko. And 3 Others
.....Respondent(s)
Counsel for Petitioner(s) : Shubham Tiwari, Abhinav Srivastava
Counsel for Respondent(s) : G.A.
Court No. - 13
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Sri Abhinav Srivastava, the learned counsel for the
petitioner, Sri Mayank Sinha, the learned A.G.A. appearing on behalf
of the State and perused the records.
2. The instant writ petition has been filed on behalf of a five and half
years old child Kavya Mishra through her father Umesh Kumar
Mishra stating that the child is in illegal custody of her mother
Vandana Mishra (the opposite party no.4) and Anshu Pathak (the
opposite party no.5), who is a friend of Vandana Mishra.
3. It has been pleaded in the writ petition that Umesh Kumar Mishra
got married to Vandana Mishra on 21.5.2017 and out of their
wedlock, the child Kavya Mishra was born on 16.01.2021. Umesh
Kumar Mishra lives at Ghaziabad. He had gone to attend his duties in
the night of 30.06.2026 and when he returned home in the morning of
01.07.2026, lock of the house was broken from the
outside. Thereafter, Umesh Kumar Mishra tried to contact his wife,
but she did not answer his phone calls and switched off her
phone. Umesh Kumar Mishra has expressed an apprehension that
opposite party no.5, who resides at Surat, Gujarat has taken away his
wife, the opposite party no.4.
4. It has further been pleaded in the writ petition that father of the
child is her natural guardian and although custody of a minor child

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2
below six years normally remains with the mother, such custody
cannot be illegal or against the welfare of the minor child. The
petitioner being the father of the detenue is her natural guardian and
is therefore seeking issuance of a writ of habeas corpus.
5. A minor girl child living with her mother cannot be said to be in
illegal custody. The averment made in para 8 of the writ petition that
the petitioner had gone to attend his duty in the night of 30.06.2026
and when he returned home next morning, he found the lock of the
house open from the outside, indicates that the petitioner was
keeping his wife and daughter locked from the outside in the house,
which prima-facie indicates that it is the petitioner himself who was
forcibly detaining his wife and child and they have somehow
escaped.
6. Custody of a minor girl child has to be decided keeping in view the
welfare of the child, which is based on various factors, including the
educational, financial and social status of the parties. There is
absolutely no pleading in the entire writ petition on these aspects on
the basis whereof this court can decide that welfare of the child can
be better secured in case her custody is transferred from her mother
to her father.
7. In the case of Tejaswini Gaud and others Vs. Shekhar Jagdish
Prasad Tewari and others: (2019) 7 SCC 42 , the Hon'ble Supreme
Court has held as follows: -
"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

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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. "
(Emphasis added)
8. The Hon'ble Supreme Court observed that in the case of Tejaswini
Gaud (supra), the appellants were the sisters and brother of the
deceased mother of the child and they did not have any authority of
law to have custody of the child, whereas in the present case, the
child is in the custody of her mother, who has the right to custody of
the child.
9. In Tejaswini Gaud (supra) the Hon'ble Supreme Court further held
that the welfare of the child is the paramount consideration and
elaborated this principle in the following paragraphs: -

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"26. The court while deciding the child custody cases is not
bound by the mere legal right of the parent or guardian.
Though the provisions of the special statutes govern the
rights of the parents or guardians, but the welfare of the
minor is the supreme consideration in cases concerning
custody of the minor child. The paramount consideration for
the court ought to be child interest and welfare of the child.
*
34. As observed in Rosy Jacob v. Jacob A. Chakramakkal,
(1973) 1 SCC 840 earlier, the father's fitness has to be
considered, determined and weighed predominantly in
terms of the welfare of his minor children in the context of
all the relevant circumstances. The welfare of the child shall
include various factors like ethical upbringing, economic
well-being of the guardian, child?s ordinary comfort,
contentment, health, education etc. The child Shikha lost
her mother when she was just fourteen months and is now
being deprived from the love of her father for no valid
reason. As pointed out by the High Court, the father is a
highly educated person and is working in a reputed
position. His economic condition is stable."
10. In Yashita Sahu Vs. State of Rajasthan and others: (2020) 3
SCC 67 also the Hon'ble Supreme Court held that the welfare of the
child is the paramount consideration. The relevant paragraphs of the
judgment are being quoted below: -
"20. It is well settled law by a catena of judgments that
while deciding matters of custody of a child, primary and
paramount consideration is welfare of the child. If welfare of
the child so demands then technical objections cannot
come in the way. However, while deciding the welfare of
the child it is not the view of one spouse alone which has to
be taken into consideration. The courts should decide the
issue of custody only on the basis of what is in the best
interest of the child.
21. The child is the victim in custody battles. In this fight of

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egos and increasing acrimonious battles and litigations
between two spouses, our experience shows that more
often than not, the parents who otherwise love their child,
present a picture as if the other spouse is a villain and he or
she alone is entitled to the custody of the child. The court
must therefore be very vary of what is said by each of the
spouses."
11. In the case of Rinku Ram and another Vs. State of U.P.: 2026
SCC OnLine All 2065 , a Division Bench of this Court followed the
aforementioned law and held that in custody matters, it is only the
welfare of the child that is of paramount consideration and it cannot
be said that a writ petition is not maintainable. Therefore, the law is
well settled that a Writ Petition seeking issuance of a Writ of Habeas
Corpus cannot be said to be not maintainable, but the Court has to
exercise its discretion in entertaining the Writ Petition keeping in view
the entire facts and circumstances of the case.
12. The question involved in the petition is a disputed question of fact.
The Family Court is better equipped to decide the rival claims of
custody of the child after deciding what will be in the best interest of
the welfare of the child on the basis of evidence to be led by the
parties.
13. As has been held by the Hon'ble Supreme Court in Tejaswini
Gaud (supra), 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. In the writ
court, rights are determined only on the basis of affidavits but a
detailed enquiry regarding welfare of the child can be better decided
by the Family Court. It is only in exceptional cases, that the rights of
the parties to the custody of the minor can be determined in exercise
of extraordinary jurisdiction in a petition in the nature of habeas
corpus and I do not find that the facts and circumstances of the
present case make out any such exceptional case for entertaining the
present Writ Petition which involves disputed questions of fact.

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Keeping in view the aforesaid peculiar facts of the case, I am of the
considered view that the Writ Petition is not entertainable.
14. Accordingly, the petition is dismissed, leaving it open for the
parties to get their respective claims decided in a suit.
15. It is clarified that this Court has not gone into the merits of the
case and, therefore, dismissal of this petition will not affect the
decision on the claim to custody on merits by the Family Court.
October 16, 2026
Ram.
(Subhash Vidyarthi,J.)
Whether the judgment is speaking: Yes
Whether the judgment is reportable: No


(Subhash Vidyarthi,J.)
Digitally signed by :-
RAM SINGH
High Court of Judicature at Allahabad,
Lucknow Bench