‘Against all cannons of morality’: Allahabad High Court quashes order saying father can give children’s custody to ‘any person’
The Allahabad High Court was hearing a plea by a woman, who had filed a habeas corpus petition alleging that her minor sons were in the illegal custody of her husband’s sister and brother-in-law.
A division bench of the Allahabad High Court has quashed a single‑bench order that held that a father had the right to transfer the custody of his minor child to any person, saying that this was “against all cannons of law and morality”.
The division bench, headed by Chief Justice Arun Bhansali, was hearing a plea filed by a woman, who had raised objections to her estranged husband handing over the custody of her children, aged 6 and 4, to his married sister, terming it illegal.
In an order on April 3, a single bench of Justice Anil Kumar-X had dismissed the woman’s habeas corpus petition, stating, “…a father, being the guardian of a minor, has every right to transfer de facto the custody of his minor child to any person. Therefore, one of the parents cannot challenge the right of the father in order to have the custody of minor to another person according to his own will and consent.”
The woman, through her two minor sons, challenged the single-bench order.
Hearing the appeal, a division bench of Chief Justice Bhansali and Justice Kshitij Shailendra stated on April 28, “A perusal of the conclusion arrived at by learned single judge wherein it has been held that a father, being the guardian of a minor, has every right to transfer de facto the custody of his minor child to ‘any person’, cannot be sustained under any circumstance.”
It added, “Further finding that one of the parents cannot challenge the right of the father in order to have the custody of minor to another person according to his own will and consent also is wholly unsustainable.”
“To dismiss the petition with the observations that the father has the right to transfer de facto custody of a minor child to any person, is against all cannons of law and morality and the same, therefore, are required to be set aside,” the bench further added.
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Quashing and setting aside the single bench order, the division bench restored the habeas corpus writ petition to its original number and remanded the matter back to the single judge. The division bench also directed that the petition be listed afresh on May 4.
What the woman’s habeas corpus plea sought
The woman had filed the habeas corpus petition alleging that her minor sons were in the illegal custody of her husband’s sister and brother-in-law, and sought that their custody be handed over to her.
The writ petition was filed with a prayer to command the husband, his sister, and her husband to produce the two children before the court and hand over their custody to the petitioner, as she was their mother. A further prayer was made to issue a direction to superior authorities to conduct a DNA test of the children, and after obtaining the results, to hand over the minor sons to the custody of the petitioner.
The additional government advocate and the counsel for the husband and others submitted that the woman had left her husband and was staying at her maternal home. The counsel submitted that the man had filed for divorce, and that he ran a crockery business and was taking care of the children.
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After hearing the submissions, the single bench dismissed the petition, stating in its order that the bare allegation that the husband had transferred the custody of the children in favour of his sister and her husband, and thereby the said transfer of custody is illegal detention, was bereft of merit.
Bhupendra Pandey is the Resident Editor of the Lucknow edition of The Indian Express. With decades of experience in the heart of Uttar Pradesh’s journalistic landscape, he oversees the bureau’s coverage of India’s most politically significant state. His expertise lies in navigating the complex intersections of state governance, legislative policy, and grassroots social movements. From tracking high-stakes assembly elections to analyzing administrative shifts in the Hindi heartland, Bhupendra’s reportage provides a definitive lens on the region's evolution.
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