During existence of an order awarding custody of minor girl to her parents by competent court, writ of habeas corpus not maintainable

Allahabad High Court:  Deciding a petition which prayed for the issue of a writ, order or direction in the nature of habeas corpus for producing the corpus of the legally wedded wife of the petitioner, Manju Sharma, the Court held that if an order of a competent court/Magistrate’s court is in existence  awarding the custody of a minor girl to the parents and that order in itself is not beyond the jurisdiction of the Magistrate’s court then the same should not be interfered with.

An order of a competent court was in existence  giving the minor girl in the father’s custody after she was recovered during the investigation upon an FIR lodged under Sections 363 and 366 of the Penal Code, 1860. The petitioner’s contention primarily was that Article 21 of the Constitution guaranteed liberty to a citizen irrespective of age and a girl who had chosen to marry at will could not be detained against her wishes, whether she was a minor or major. Secondly, availability of an alternative remedy is no bar to the  maintainability of a writ of habeas corpus, in spite of an order passed by a Magistrate’s court.

Observing that personal liberty of a person could not be curtailed by any order unless it is passed in accordance with law, the Court held that the petitioner’s contention of his right under Article 21 being curtailed by the Magistrate’s order had to seen in the perspective whether any such right was provided by law to the Magistrate or not. Dismissing the petition, the Court held that where a Magistrate has exercised his power with due diligence and consideration of the matter and if his order is not patently illegal, then the same cannot be reagitated again by way of a writ petition, more so when further remedy in the form of revision and appeal is available. It will make the order of the court futile and of no consequence.

The Court held that custody of the minor girl was given by the court as per law, hence Article 21  is not violated in any manner. As the girl was given in the custody of her parents by the order of a competent court, in the circumstances that custody cannot be held to be illegal and it cannot be said that the girl is in illegal detention of her parents. [Manju Yadav v. State of Uttar Pradesh, 2016 SCC OnLine All 596, decided on July 25, 2016]

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