Allahabad High Court
KM. RUMAISHA AND ANOTHERversusSTATE OF U.P. AND 5 OTHERS
- Decided
Holding
Custody of the minor child remains with the father, with visitation and limited temporary custody rights granted to the mother.
Summary
The petitioners, mother Smt. Shabanam Bano and another, filed a habeas corpus petition seeking custody of their seven‑year‑old daughter, Km. Rumaisha, alleging illegal detention by the father, Ansar Ahmad. The father produced the child, who testified that she is comfortable living with him, attends school, and has a good relationship with his second wife, expressing no desire to stay with her mother. The mother contended that she could not reside with the father due to his second marriage and claimed she should retain custody of the child. The court examined the child's preference, her age, the care she receives, and the paramount welfare principle, concluding that the father’s custody best serves her interests. Accordingly, the court ordered that custody remain with the father, while granting the mother visitation rights, video‑conferencing, and temporary custody during school vacations. The petition was consequently disposed.
Issues considered
- Whether the mother can be awarded custody of the minor daughter despite the father's custody and the child's expressed preference
- Whether visitation and temporary custody rights should be granted to the mother under the best‑interest‑of‑the‑child standard
Subjects
- custody
- child welfare
- habeas corpus
- visitation rights
- best interest of child
- family law
- parental rights
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
HABEAS CORPUS WRIT PETITION No. - 1209 of 2026
Km. Rumaisha And Another
.....Petitioner(s)
Versus
State Of U.P. And 5 Others
.....Respondent(s)
Counsel for Petitioner(s) : Diwan Saifullah Khan
Counsel for Respondent(s) : G.A.
Court No. - 73
HON'BLE SANDEEP JAIN, J.
1. By order dated 21.08.2026, the State as well as respondent nos. 5 and 6
were directed to produce the corpus, Km. Rumaisha, before this Court. In
compliance with the said order, the corpus has been produced before this
Court by Sub-Inspector Kamal Singh, PNO No. 231100540, Lady
Constable Asha Singh, PNO No. 172300016, and Constable Naveen
Kumar, PNO No. 212761052, Police Station Jaitpura, District Varanasi.
2. This Court interacted with the corpus, Km. Rumaisha, who disclosed
that she is aged about seven years and is studying in Class II. She stated
that she is comfortably residing with her father and other relatives. She
further disclosed that her father has solemnized a second marriage, but his
second wife is taking proper care of her, loves her and treats her well. She
stated that she has no complaint whatsoever against the second wife of her
father. She also did not express any desire to leave the custody of her
father or to reside with her mother.
3. From the interaction with the corpus, it was apparent that there is
presently no strong emotional bond between the corpus and her mother.
4. This Court also interacted with the petitioner, Smt. Shabanam Bano,
who is the mother of the corpus. She disclosed that she is not willing to
reside with her estranged husband, Ansar Ahmad, as he has contracted a
second marriage with another woman without obtaining her consent. She,
therefore, submitted that she cannot reside with her husband. It is further
apparent that the corpus is not in any illegal detention and is comfortably
HABC No. 1209 of 2026
2
residing with her father.
5. The petitioner further disclosed that two children were born out of her
wedlock with respondent no. 5, Ansar Ahmad, and that she presently has
the custody of their son, aged about five years, who is studying in LKG.
6. This Court also interacted with respondent no. 5, Ansar Ahmed, who is
the estranged husband of the petitioner. He disclosed that he owns a
factory where Banarasi sarees are manufactured and that he has a decent
source of income. He admitted that, after the petitioner voluntarily left the
matrimonial home, he contracted a second marriage with another woman.
He, however, stated that he is still willing to reside with his first
wife/petitioner and is ready to maintain her and their children. It is,
however, apparent that the petitioner is not willing to resume cohabitation
with him.
7. Upon interaction with the parties, it is apparent that the petitioner Smt.
Shabanam Bano has declined to reside with her husband/respondent no. 5,
Ansar Ahmad, on the ground that he has contracted a second marriage,
whereas the husband has expressed his willingness to keep the petitioner
in the matrimonial home. It is further apparent that the petitioner is not
earning anything and, at present, may not be in a position to
independently maintain the corpus. More importantly, the corpus is not
willing to reside with the petitioner and is comfortably residing with her
father. She has also expressed satisfaction with the care, behaviour and
conduct of the second wife of her father.
8. This Court also afforded an opportunity to the petitioner to interact
with the minor corpus and to persuade her(minor corpus) to reside with
her. However, even after being given such an opportunity, the corpus did
not express any willingness to reside with the petitioner.
9. In view of the aforesaid facts and circumstances, particularly the tender
age of the corpus, her unequivocal preference to remain with her father,
the care and affection being provided to her in the father's household, and
the fact that she is comfortably residing there and pursuing her education,
this Court is of the considered opinion that it would be in the paramount
welfare and interest of the corpus to continue in the custody of her
HABC No. 1209 of 2026
3
father/respondent no.5, Ansar Ahmad.
10. Accordingly, the custody of the minor corpus, Km. Rumaisha, shall
remain with respondent no. 5, Ansar Ahmad.
11. However, in order to preserve and develop the emotional bond
between the petitioner and the minor corpus, the petitioner, Smt.
Shabanam Bano, shall have visitation rights. She shall be at liberty to
meet the minor corpus as and when she desires, after giving prior
intimation to respondent no. 5. She shall also be entitled to have daily
interaction with the corpus through video conferencing on mobile phone
between 6:00 p.m. and 9:00 p.m.
12. The petitioner shall also be entitled to have temporary custody of the
corpus during school vacations and holidays. The petitioner has assured
the Court that she shall restore the custody of the corpus to respondent no.
5 immediately upon efflux of such vacation or holidays so that the
education of the corpus is not hampered.
13. Similarly, respondent no. 5, Ansar Ahmad, shall be entitled to meet
and interact with his minor son, who is presently in the custody of the
petitioner, Smt. Shabanam Bano. He shall also be entitled to have
temporary custody of the minor son during school vacations and holidays
and shall be entitled to interact with him daily through video conferencing
on mobile phone between 6:00 p.m. and 9:00 p.m.
14. The parties are expected to extend full cooperation to each other in
implementing the aforesaid visitation and interaction arrangements,
keeping in view the welfare and best interests of their minor children.
15. With the aforesaid observations and directions, the instant habeas
corpus writ petition is disposed of.
(Sandeep Jain,J.)
September 11, 2026
Jitendra
Digitally signed by :-
JITENDRA KUMAR PATEL
High Court of Judicature at Allahabad
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