Excerpt
The Court directed that in light of the fact that the Petitioner and his family members were prosecuted, so no one in the family could look after the child, so it would be in the best interest of the child that his custody remained with his maternal grandparents.
Background
The present writ petition (Habeas Corpus) was filed by the Petitioner, who was the father of the child namely Rudransh Singh, aged six years, under Article 226 of the Constitution of India to release the detenue- Rudransh Singh from the custody of Respondent no. 3 & 4, who were maternal grandfather and grandmother of detenue.
Submissions before the Court
Petitioner’s Submissions
The facts which were projected by the petitioner in the writ petition were that the marriage of the petitioner had been solemnized with one Khushboo Singh. Later, out of their wedlock, a child- Rudransh Singh was born on 09.09.2014. The petitioner was working in New Delhi. The deceased had gone to her matrimonial home in New Delhi but after that, she resided with her parents. Respondent no. 3 & 4 used to mentally harass her, which compelled her to commit suicide on 09.08.2020. It was further contended that it had come to petitioner’s knowledge that the deceased was sexually harassed by some person and such fact was within the knowledge of Respondent no. 3 & 4.
The child- Rudransh Singh was living with his maternal grandparents, but they were not taking care of him. Respondent No. 3 used to subject him to cruelty and harassment to grab money from the petitioner. In view of the above facts, the petitioner had prayed that a writ in the nature of Habeas Corpus is issued to Respondent no. 2 for releasing detention of Rudransh from the custody of Respondent No. 3 & 4 and to produce him before this Court.
Respondent’s Submissions
Respondents No. 1 & 2 had contended that the Sub-Divisional Officer was directed to investigate the matter on the strength of the complaint dated 02.11.2020. On the death of Khushboo Singh, Merg intimation had been recorded, evidence collected and on the basis of that evidence, an offence under Section 304(B) of IPC was made out, therefore, the First Information Report was registered in Gandhi Nagar Police Station, Surguja on 05.02.2021.
Respondents No. 3 & 4 had filed return contending that the detenue right from his birth along with his mother, was living in the maternal house, as the relationship between petitioner and his wife was not cordial. It was further contended that the deceased wife went to her matrimonial home in New Delhi, but soon after marriage, the unnatural behaviour of family members made the deceased with no option, but to leave the matrimonial home.
After the death of his wife, the petitioner never visited Ambikapur to meet his child. It was further contended that the respondents were taking all possible steps to protect the interest of detenue by taking due care. It was mentioned that the petitioner and his family members were already facing criminal charges as such, if custody of the child would be handed over to the petitioner, it will have an unwanted impact on the child, as such it was prayed to reject Habeas Corpus writ petition.
Consideration by the Court
The issue required to be decided by this Court was whether the grant of the writ of Habeas Corpus of the child was available to the Petitioner. It had been well settled that the Habeas Corpus proceeding was not to examine the legality of custody. The present facts of the case had to be examined in light of the said parameters fixed for issuance of the writ of Habeas Corpus.
From the facts as projected by the parties, it could be safely asserted that on account of the criminal case against petitioner and family members, no one in the family would be available to look after the child, whereas Respondents no. 3 & 4 being on a safer position, were in a better position to look after Rudransh. The Court had thus, to examine whether the welfare done by the Respondents no. 3 & 4 could be termed as better welfare of the child. Respondents no. 3 & 4 had filed a copy of the school fee that clearly demonstrated that a good amount was being incurred by them for Rudransh, therefore, it could be held that the welfare of the child lied with Respondents no. 3 & 4 on a higher pedestal.
The reasoning assigned by this Court was fortified from the judgment passed by the Hon’ble Supreme Court in the case of Tejaswini Gaud & others vs. Shekhar Jagdish Prasad Tewari & others wherein, the Hon’ble Supreme Court had held that the welfare of the child was the paramount consideration and due weight should be given to child’s ordinary comfort, health, education, intellectual development, and his favourable surroundings.
The judgment of the Hon’ble Supreme Court in Yashita Sahu vs. State of Rajasthan & others was also in the same line of reasoning wherein, the Hon’ble Supreme Court had considered that welfare of the child was paramount consideration for the grant of the writ of Habeas Corpus under Article 226 of the Constitution of India.
Court’s Directions
From the above discussion, it was apparent that the onus of welfare of the child lied on a higher footing with the respondents No. 3 & 4, therefore, looking at the facts and circumstances of the case, this Habeas Corpus writ petition filed by the petitioner was liable to be dismissed. The contention put forward by either side was being considered for deciding the writ of Habeas Corpus and they had liberty to take recourse available to them under the various laws. The present Habeas Corpus writ petition was accordingly dismissed.
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