SABIHA KAUSHAR AND 3 OTHERSversusSTATE OF U.P. AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
           HABEAS CORPUS WRIT PETITION No. - 1298 of 2026

Sabiha Kaushar And 3 Others
                                                            .....Petitioner(s)
                                   Versus

State Of U.P. And 3 Others
                                                          .....Respondent(s)

Counsel for Petitioner(s)                        :   Firdos Ahmad
Counsel for Respondent(s)                        :   G.A.

Court No. - 73
                     HON'BLE SANDEEP JAIN, J.

Learned counsel for the petitioner submits that the corpus, Smt. Sabiha
Kaushar, aged about 28 years, and the minor corpus, Jannat Sahab and
Muhammad Ashar, aged about 9 years and 5 years, respectively, are the
wife and minor children of the petitioner, Mohd. Shahab @ Muhammad
Shahab. It is submitted that they are presently in the custody of
respondent No.4, Hazi Sher Mohammad, who is the father of the
petitioner's estranged wife and, therefore, the father-in-law of the
petitioner.

Learned counsel for the petitioner submits that the minor corpus are
presently residing with their mother, who, according to him, is not
competent to properly look after their needs and welfare. It is, therefore,
prayed that their custody be entrusted to the petitioner, being their father.

Per contra, learned A.G.A., on the basis of instructions, submits that there
is a serious matrimonial dispute between the petitioner and his wife. He
further submits that the petitioner's wife had instituted proceedings under
Section 125 Cr.P.C. claiming maintenance for herself and the minor
children, which proceedings were allowed by the learned Additional
Principal Judge, Family Court, Court No.2, Azamgarh, vide order dated
28.11.2025, whereby maintenance at the rate of Rs.6,000/- per month was
awarded to the wife and Rs.3,000/- per month each was awarded towards
the maintenance of the two minor children.

It is further submitted that, in the aforesaid maintenance proceedings, the
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petitioner filed his objection claiming that he is a labourer, is possessed of
very meagre income and is also required to maintain his aged parent. It
was also his case that his wife is educated up to the post-graduate level
and is capable of earning her own livelihood. Learned A.G.A. submits
that, in view of the educational qualification and capacity of the mother to
take care of the minor children, their continued custody with her would be
in their paramount welfare and best interests.

I have heard learned counsel for the parties and perused the material
brought on record.

It is not in dispute that the marriage between the petitioner and his wife
was solemnized on 20.07.2016 and that two minor children were born out
of the said wedlock. The minor children are presently residing with their
mother.

The principal question which arises for consideration is whether the
custody of the minor children with their mother can, in the facts and
circumstances of the present case, be characterised as illegal custody so as
to warrant interference in exercise of the writ jurisdiction of this Court.

From the material available on record, it is evident that the dispute
between the parties is essentially matrimonial in nature and that the
question of custody of the minor children has arisen in the backdrop of
the strained relationship between the spouses. The wife is living
separately from the petitioner and has already instituted proceedings for
maintenance under Section 125 Cr.P.C., which have been decided on
merits by the competent Family Court vide order dated 28.11.2025.

The aforesaid order further discloses that the petitioner himself asserted
before the Family Court that he is a labourer with meagre income and that
his wife is better educated, being a post-graduate, and is capable of
earning her livelihood. On the other hand, the wife has alleged that the
petitioner is engaged in running a factory manufacturing Banarasi sarees
and is earning a substantial income. The said allegation has, however,
been disputed by learned counsel for the petitioner. When an opportunity
was afforded to learned counsel for the petitioner to make a categorical
statement regarding the petitioner's financial capacity, he expressed his
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inability to do so.

Be that as it may, this Court is not called upon, in the present proceedings,
to adjudicate upon the rival allegations concerning the financial status of
either spouse. What is required to be considered is whether the existing
custody of the minor children with their mother is illegal and whether
their welfare would be better served by transferring their custody to the
petitioner.

It is well settled that, in matters concerning the custody of minor children,
the paramount consideration is their welfare and best interests, and not the
legal right or entitlement of either parent. The writ of habeas corpus
cannot ordinarily be invoked merely to secure a change of custody where
the minor children are residing with one of their natural parents and there
is no material demonstrating that such custody is unlawful or
demonstrably detrimental to their welfare.

In the present case, the minor children are in the custody of their natural
mother. There is no material on record to establish that their custody with
the mother is illegal or that their physical or emotional well-being is in
any manner endangered. On the contrary, the material placed before the
Court indicates that the mother is educated and is presently taking care of
the minor children.

In view of the aforesaid facts and circumstances, this Court is of the
considered opinion that no case is made out for transferring the custody of
the minor children from their mother to the petitioner in exercise of the
extraordinary writ jurisdiction of this Court.

However, the petitioner, being the father of the minor children, cannot be
deprived of his legitimate right to maintain contact and meaningful
interaction with them. Continued interaction with both parents ordinarily
serves the emotional and developmental needs of minor children, subject
to their welfare and convenience.

Accordingly, while declining the prayer for transfer of custody, the
petitioner is granted visitation rights. He shall be entitled to meet the
minor children at the residence of their mother, as and when he desires, at
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                                    a mutually convenient time, without causing any disturbance or
                                    inconvenience to the mother or the minor children.

                                    The petitioner shall also be entitled to interact with the minor children
                                    through video conferencing/mobile communication every day between
                                    6:00 p.m. and 9:00 p.m., subject to their availability and convenience.

                                    The mother of the minor children shall extend all reasonable cooperation
                                    in facilitating the aforesaid visitation and daily interaction and shall not
                                    unnecessarily obstruct or frustrate the petitioner's access to the minor
                                    children.

                                    The State authorities as well as respondent Nos.2 and 3 shall ensure that
                                    the aforesaid visitation and communication rights of the petitioner are not
                                    unlawfully obstructed.

                                    With the aforesaid observations and directions, the present petition stands
                                    disposed of.



                                                                                             (Sandeep Jain,J.)
                                    September 9, 2026
                                    Himanshu




Digitally signed by :-
HIMANSHU YADAV
High Court of Judicature at Allahabad