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2005 DIGILAW 813 (PAT)

Gulam Rasul v. State of Bihar

2005-09-09

body2005
ORDER 1. Heard learned counsel for the petitioner and the State. 2. This is a peculiar case in which the custody of a boy is being claimed by two persons. Petitioner is claiming to be the father of the boy namely Md. Hasnain Respondent No. 6 is also claiming same boy, but according to him he is Shankar Sahni. 3. Facts of the case are that the Officer-in-charge of Bathnaha P.S. respondent No.6 through his report dated on 5.11.2002 and 6.11.2002 reported to the S.D.M. Sitamarhi (Respondent No.3) Sadar that one minor boy aged about 8 years named Shankar Sahni/Md. Hasnain was found roaming and so one person namely Noor Hassan Anari son of Md. Salim Ansari, Mohalla Parpur Bhalha taking a sympathetic and tender hearted view kept the boy at his place and the boy began living there. It was also reported that one lady namely Rasina Khatton wife of the (petitioner) Md. Gulam Rasual resident of Village Samsa, P.O. Samsa, P.S. Navkothi, District Begusarai appeared and claimed the boy as her son. Further it was also reported that respondent no.6 appeared before the police and claimed the boy to be his son. Since the two claimants were of two different communities and both were claiming the boy as their son. The police officer produced the boy in the court of the learned S.D.M. and requested him to pass order regarding proper custody of the boy. Considering these facts a case was registered as Case No. 1381 of 2002 The ** in order to resolve the dispute ordered for D.NA test on 7.11.2002 and since then this matter is lingering for D.NA test and the victim boy has beenin remand home deprived of the love and affection of his mother and father. The petitioner who claimed to be the father of the boy had produced several documents before the S.D.M. like ration card, photograph taken at the time of circumcision, but the S.D.M. without considering these documents ordered for D.N.A. test. This order passed by the S.D.M. Sitamarhi was challenged by the petitioner in Cr. Rev. No. 46 of 2003 before the Sessions Judge, Sitamarhi but it was also rejected and the boy was not released in favour of the petitioner. 4. This order passed by the S.D.M. Sitamarhi was challenged by the petitioner in Cr. Rev. No. 46 of 2003 before the Sessions Judge, Sitamarhi but it was also rejected and the boy was not released in favour of the petitioner. 4. Having lost every where the petitioner has filed this criminal writ application forquashing the order passed by the Sessions Judge Sitamarhi as well as for a direction to the respondents to release the son of the petitioner in his favour. At the initial stage notice was issued to respondent no.6 and by order dated 3.12.2004 again notice was issued to Respondent no.5. On both the occasions the notice was sent through registered post as well as under ordinary process, but neither the service report returned nor the notice returned unserved. Finally by order dated 27.6.2005 the service of notice was treated as valid. The respondent no.6 even after proper service of notice did not chose to appear before this Court and also left pairvi of the case, which was the result of the dispute raised by him for the minor boy. Since 2002, the poor boy is living at Remand home Muzaffarpur at the mercy of the authorities. 5. During the pendency of this application the boy fled away from remand home but could be traced out when specific direction was issued by the High Court. 6. On the direction of this Court, the petitioner, his wife and the victim boy has appeared before this Court and are physically present. I put some questions to the boy regarding his name, his father's name, Grand father's name, village where he used to reside. When he was asked that with whom he wants to go, he clearly replied that the petitioner is his father and he is anxious I to go with him. He also replied that he fled away from the remand home as he disperately wanted to meet his parents. 7. Considering the reply of the victim boy and the anxiety shown by the petitioner for release of his son in his favour as well as reluctance of Respondent No.6, I am of the view that in the interest of the boy, he should be released in favour of the petitioner. The boy will get love, affection and care in the company of petitioner and his wife. The boy will get love, affection and care in the company of petitioner and his wife. No other person could have persued the matter for such a long time except the natural parent of boy. 8. Considering the facts and circumstances of the case, the boy is released in favour of the petitioner from here. He will go with the petitioner from the court itself. The Government Advocate representing the State has expressed his anxiety regarding the determination of parentage of the boy. He has also stated that our State being a welfare State is interested in the welfare of citizen. Considering the welfare of the child, his parentage should be finally decided. 9. If the State is interested in this matter in that case any authority representing State may approach the petitioner and take blood sample of petitioner, his wife and that of the boy and be sent to the Hyderabad for D.NA test at the cost of the State. 10. Accordingly this application is allowed. The boy will go with petitioner from this court itself. 11. Let a copy of this order be handed over to the Government Advocate.