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Saksham Pathak (Minor) Vs Vishal Dubey & 4 Others: The Law Gives Priority To Parents Where It Comes To The Custody Of Their Children

minakshi bindhani ,
  03 August 2021       Share Bookmark

Court :
High Court of Allahabad
Brief :

Citation :

15th December 2020

Justice Suneet Kumar

Saksham Pathak(minor)………. (Petitioner)
Vishal Dubey &4 others……….. (Respondent)


The natural guardian has filed the writ petition for the custody of the corpus(Saksham Pathak).


  • A-1 is the natural father of the child and was born from the deceased Archana. The natural father has been gainfully employed with the CRPF.
  • The respondent is the in-laws of A-1 and not the natural guardian of the present case.
  • After the death of A-1's wife (Archana), the corpus continued to stay at the respondent's place due to the nature of A-1 employment.
  • All the respondents jointly take care of the child's welfare, and they all feel attached to the minor.
  • A-1 has contracted a second marriage with Varsha. The child is aged about four years. The respondent had pressed for the custody of the child.
  • The natural guardian contended, having said that child is in illegal detention of the respondent.


  • Hindu Minority and Guardianship Act,1956:

This Act applies to persons who are Hindu, Buddhist, Jain, or Sikh by religion.

  • Guardians and wards Act,1890 :

This Act is a secular law regulating guardianship and custody for all children, irrespective of their religion.

  • Hindu Marriage Act, 1956 :

This Act authorizes courts to pass interim orders in any proceedings thereunder regarding custody, maintenance, and education of minorchildren.


  • Whether the writ of habeas corpus petition filed by the natural father A-1 is maintainable?
  • Whether the writ petition filed by the father (A-1) of the corpus has sought custody of the minor child from the respondents?
  • Whether handing over the child's custody to A-1 is not conducive to the interest and welfare of the minor child?
  • Whether the second marriage is disentitled a parent from the custody of the child?


While dealing with the paramount consideration of the custody of a child, the court is neither bound by the statute nor by strict rules of evidence or procedure nor by the precedent. In selecting, the proper guardian of a minor the court exercises parens patriae ( supreme guardian/protector) jurisdiction and is expected and bound to given due weight to the child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. Moral and ethical values are equally important and indispensable considerations.

  • The court after briefly examined the law, inferred that the writ of habeas corpus is maintainable in child custody matters but in exceptional cases where it has proved that the detention of the minor child by a parent or others was illegal and without any authority of law.
  • The respondents were miserably failed to prove the prima facie, which would be jeopardized if the custody would be given to the natural father A-1.
  • The court relied on similar judgments and mentioned that if the minor is old enough to form an intelligent preference or judgment, the court must consider such preference. However, the final decision should rest with the court as to what is conducive to the welfare of the minor.
  • In the present petition, the court had mentioned after the following observation thatthe child was familiar and attached to his father and feels secure in his arms, as evident from his demeanor.A-1 has the availability of a conducive and appropriate environment for a minor child.
  • The court laid down from the comparable judgments that the second marriage does not disentitle a parent from the custody of a child. The Hindu father who has married the second wife is no ground for depriving him of his parental right of custody. The father ought to be the guardian of the person and property of the minor in ordinary circumstances.


The court held that concerning the facts and circumstances and the material placed on record, the custody of the child could not be permitted to continue any further with the respondent. The court had directed to handover the child to A-1 (natural father) to foster the love and affection of all the family members. The court also mentioned that respondent no-1 was barred to have the visiting rights due to prior criminal antecedents. Therefore ,the court had allowed the writ petition.

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