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Madhya Pradesh High Court · body

2020 DIGILAW 1007 (MP)

Sangeeta Atre v. State of M. P.

2020-10-05

ROHIT ARYA

body2020
ORDER 1. Petitioner, a young lady 26 years of age, who became widow at the age of 23 years is before this Court seeking writ of Habeas Corpus with a submission that the corpus of Ms. Satakshi Thakur is in illegal custody of respondents No.5, 6 and 7 and , therefore, sought relief of production and custody of the child. 2. Facts relevant for disposal of writ petition is in narrow compass; petitioner was married to late Shri Ritesh Thakur in the year 2014. They were blessed with a baby girl (the corpus of Ms. Satakshi) in 2015. Unfortunately, Shri Ritesh Thakur passed away in 2017. They were residing in village Dhangaon, Tahsil and District Khandwa alongwith respondents No.5, 6 and 7 viz.; respondent No.5 father-in-law, respondent No.6 brother-in-law and respondent No.7 sister-in-law. 3. After sad demise of Shri Ritesh Thakur petitioner had come to her parents place at village Choli, District Khargone with the child. Like any other parents petitioner's parents also thought of well being of the petitioner and to facilitate her peaceful settled life, solemnized her second marriage with one Shailendra Atre on 30.6.2020. Respondents No.5, 6 and 7 had taken a strong exception to the second marriage of the petitioner and had taken forceful custody of minor child Ms. Satakshi. The petitioner under such circumstances having no option has approached this Court by way of the instant writ petition for the aforesaid relief primarily on the premise that for the welfare of the child aged five years, no one else except mother is in the best position to look after and bring up the child. 4. This Court while issuing notices had directed respondents No.5, 6 and 7 to produce the corpus of Ms. Satakshi Thakur – respondent No.8. On 14.9.2020 Ms. Satakshi Thakur had appeared. This Court has given the custody of respondent No.8 – Ms. Satakshi Thakur to the petitioner, though for fifteen days and thereafter the case has been posted today. 5. Shri Rohit Mangal, learned counsel for the petitioner submits that welfare of a young child is of paramount consideration in the matter of custody of child under section 6 of Hindu Marriage Act.* In the instant case custody of Ms. Satakshi Thakur was forcefully taken by respondents No.5, 6 and 7, therefore, she was in illegal confinement. 5. Shri Rohit Mangal, learned counsel for the petitioner submits that welfare of a young child is of paramount consideration in the matter of custody of child under section 6 of Hindu Marriage Act.* In the instant case custody of Ms. Satakshi Thakur was forcefully taken by respondents No.5, 6 and 7, therefore, she was in illegal confinement. Under such circumstances the instant writ petition is filed for release of the minor Ms. Satakshi Thakur from the custody of aforesaid respondents No.5, 6 and 7. The parameters for consideration of custody of child under aforesaid provisions squarely applies in the instant case regard being had to the safety and welfare of the child. Even if the petitioner has married, that by itself cannot be a reason to deny her lawful custody of the child. In any case in preference to petitioner respondents No.5, 6 and 7 by no stretch of imagination can be said to have better right for custody of the child. After all mother is the natural guardian. Therefore, prays for the custody of the child to be continued till she attains majority. To bolster his submissions learned counsel has relied on the judgment of Hon'ble apex Court in the matter of Tejaswini Gaud v. Shehar Jagdish Prasad, (2019) 7 SCC 42 . 6. Per contra, Shri Harshwardhan Sharma opposes the writ petition with submission that respondents No.5, 6 and 7 are Rajpoot by caste and, therefore, the child born in the family must remain with the family. Since, the petitioner has solemnized marriage in different caste, though in Hindu community, it is a blemish to the family of Rajpoot, therefore, she has no legal, moral or customary right to have the custody of the child. Since the child is born in Rajpoot family, therefore, she must be brought up with traditions, customs and rich Rajpoot culture. It is possible if the child is with respondents No.5, 6 and 7 having Rajpoot Sanskars. 7. The aforesaid submissions of learned counsel for the respondents No.5, 6 and 7 is in despair and more of disgust than of substance. Self styled caste based propagation is unrealistic and untrue to the contemporary time and has no place in a society run by rule of law. No exception to relevant considerations for custody of minor child as aforesaid can be taken on submissions of respondents No.5, 6 and 7. 8. Self styled caste based propagation is unrealistic and untrue to the contemporary time and has no place in a society run by rule of law. No exception to relevant considerations for custody of minor child as aforesaid can be taken on submissions of respondents No.5, 6 and 7. 8. Shri Rohit Sharma appearing for the respondents/State fairly submits that custody of child five years old baby girl be given to the petitioner/mother being natural guardian, therefore, State has no objection if the custody of the child continues with petitioner.* 9. Upon hearing learned counsels for the parties in the considered opinion of this Court regard being had to the aforesaid factual matrix it is a fit case for issuance of writ of Habeas Corpus ensuring release of Ms. Satakshi Thakur from the custody of respondents No.5, 6 and 7 and for handing over her to the petitioner her natural mother applying the settled principles of law in the context of section 6 of Hindu Marriage Act* and the law laid down by the Hon'ble apex Court in the matter of Tejaswini Gaud v. Shehar Jagdish Prasad, (2019) 7 SCC 42 , in the considered opinion of this Court the welfare of the child shall be well taken care of by natural guardian mother – petitioner for her healthy bringing up in place of respondents No.5, 6 and 7 Rajpoots. 10. With the aforesaid writ petition is allowed and the custody of Ms. Satakshi Thakur shall continue with the petitioner. 11. At this stage Shri Harshwardhan Sharma submits that at least grand parents of respondent No.8 may be allowed to meet her on some festivals or religious ceremonies. 12. Shri Mangal, learned counsel for the petitioner has no objection if proper advance information is given to the petitioner for their visit to her house to meet the child. 13. Learned Panel Lawyer is directed to send an e-copy of this order to all the concerned including the concerned Station House Officer of the Police Station for information and necessary action. 14. Registry is directed to send an e-copy of this order to the Court concerned for necessary compliance. 15. It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time-to-time. 14. Registry is directed to send an e-copy of this order to the Court concerned for necessary compliance. 15. It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time-to-time. Rohit Kumar Mangal for petitioner; Rohit Sharma, Panel Lawyer for respondents No. 1 to 4/State; Harshwardhan Sharma for respondents No. 5, 6 and 7.