In custody matters, the Supreme Court’s power to issue an injunction is only permitted in cases where the detention of a minor is by a person who is not entitled to custody: Allahabad HC

Allahabad HC said Friday that in custody matters, the Supreme Court’s power to issue the injunction is limited only in cases where the detention of a minor is by a person who is not entitled to custody.

The bank of Judge Shamim Ahmed dealt with the petition filed ordering the defendants to bring the detainees, namely Rayan Pandey and Mirah Pandey, before the court at the earliest and give custody of the said minor children to the mother (applicant).

In this case, the petitioner – Ira Sharma – married Respondent #4 – Dheerendra Pandey @ Dheerendra Vikram Pandey in Dharamshala, Himachal Pradesh. After that, the couple moved to the United States for a bright future.

After moving to the United States, as a result of their marriage, two children were born, a male child, namely Master Rayan Pandey, and a female child, namely Mirah Pandey, and held an American passport. After the birth of the second child, the relationship between husband and wife began to improve, became more absurd again, and quarrels broke out regularly.

Subsequently, on June 2nd, 2022, Plaintiff and Defendant No. 4 reached an amicable settlement through a document entitled “Marital Settlement Agreement”.

After reaching a settlement, Plaintiff and Defendant #4 appealed to Family Court and divorced by mutual consent through the court of competent jurisdiction in the United States, ie, Superior Court of New Jersey Chancery Division: Family Part Somerset Country.

Shri Shubham Aggarwal, The petitioner’s attorney submitted that Respondent #4 runs an IT company in the US with his brother #5 and earns millions of dollars a year, but the petitioner did not take a single penny of alimony or any amount of alimony from him did respondent #4 at the time of the divorce.

It was further argued that the days for the physical custody of the children were fixed, but Respondent No. 4 left the Complainant in the dark and, under some pretext, took the children from the United States to India to his hometown without the Complainant’s consent to obtain permanent care relocation of the children while the children were born and resident in the US and were attached to their mother and never wanted to come to India with Respondent #4.

The bank referred the case Nithya Anand Raghvan vs State (NCT of Delhi) and another There, the Supreme Court ruled that “the primary function of the court in such matters is to determine whether custody of the child is unlawful and unlawful and whether the best interests of the child require that his current custody should be altered and the child should be surrendered.” .” left in the care and custody of another person.”

In addition, the Supreme Court referred the case Shradha Kannaujia (Minor) and another, v State of UP and 5 others It stated: “It is undisputed that the writ of habeas corpus is a prerogative and an extraordinary remedy.” The subject matter and scope of a writ of habeas corpus relating to a claim relating to custody of a minor child was considered , and it was ruled that in a habeas corpus motion seeking custody of a child from one parent to the other, the primary consideration for the court would be to determine whether custody of the child as may be considered unlawful or unlawful and whether the best interests of the child require a change in current custody arrangements.”

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The Court noted that the issue of the enforceability of a habeas corpus motion under Article 226 of the Constitution of India for custody of a minor was considered by the Apex Court in the case Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others and it was noted that “the petition may be granted if the detention by parents or others is found to be unlawful and without any legal authority, and in exceptional cases where an ordinary remedy is provided, to the extraordinary remedy of habeas corpus.” -Regulation can be resorted to.” The law is either unavailable or ineffective.”

The Supreme Court held that when deciding child custody, the welfare of the children must come first and technical objections must not get in the way. However, one spouse’s sole opinion should not be taken into account when deciding on the well-being of the children. The courts should only decide the issue of custody based on what is in the best interests of the children. A child, especially a child of tender age, needs the love, affection, company and protection of both parents. This is not just a child’s right, it is his/her basic human right. Just because the parents disagree with one another does not mean that the child should be denied the care, affection, love, or protection of either parent.

The board held that habeas corpus is not intended to establish or test the legality of custody. Habeas corpus is a medium by which custody of the child is at the discretion of the court. Habeas corpus is a title deed, which is an extraordinary legal remedy. The order will be issued if, under the circumstances of the individual case, the ordinary legal remedy provided for by law is either unavailable or ineffective; otherwise no dunning notice will be issued. In custody matters, the Supreme Court’s power to issue the injunction is limited only in cases where the detention of a minor is by a person who is not entitled to custody.

Against this background, the Supreme Court awarded Defendant No. 4’s father, Dhreerendra Pandey, custody of both children.

Case title: Mirah Pandey vs State of UP

Bank: Judge Shamim Ahmed

Case No.: HABEAS CORPUS WRITTEN PETITION No. 67 of 2023

Plaintiff’s Attorney: Shri Shubham Aggarwal

Note to the defendant: Sri Manoj Kumar Misra