HIGH COURT OF JUDICATURE AT ALLAHABAD HABEAS CORPUS WRIT PETITION No. - 1298 of 2026 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 Versus Counsel for Petitioner(s) : Firdos Ahmad Counsel for Respondent(s) : G.A. Sabiha Kaushar And 3 Others .....Petitioner(s) State Of U.P. And 3 Others .....Respondent(s) 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 HABC No. 1298 of 2026 2 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 HABC No. 1298 of 2026 3 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. September 9, 2026 Himanshu HABC No. 1298 of 2026 4 (Sandeep Jain,J.) Digitally signed by :- HIMANSHU YADAV High Court of Judicature at Allahabad