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2022 DIGILAW 1616 (ALL)

Vinayak Tripathi v. State of U. P.

2022-09-30

SHREE PRAKASH SINGH

body2022
JUDGMENT : Shree Prakash Singh, J. Heard Sri Vijay Kumar Ojha, learned counsel for the petitioners, Sri Dhiraj Srivastava, learned counsel for the respondent Nos. 3 & 4, Sri Mithlesh Kumar, learned AGA for the State and perused the record. 2. By means of this petition, the petitioner No. 2 has sought writ of Habeas Corpus, directing the respondents to produce the corpus (petitioner No. 1), namely, Vinayak Tripathi before this Court and further prayed that the custody of the petitioner No. 1 may be handed over to the petitioner No. 2. 3. At the very outset, learned counsel for the opposite party Nos. 3 and 4 has raised preliminary objection regarding maintainability of the instant Habeas Corpus petition. He submits that writ of Habeas Corpus cannot be issued where there is an statutory alternative remedy is available to the person aggrieved and as such if there is any grievance to the petitioner No. 2, he can take the recourse of invoking the relevant provisions of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 'Act 32 of 1956') or he may approach the Court of civil competence. Further submitted that after the death of the mother, the child is gladly living with the grand maternal parents and now his admission has got done, in a reputed school and he is pursuing his study. Adding his contention, he submits that the writ of Habeas Corpus can be issued in an event where the custody is unlawful and that can be termed as illegal detention. He argued that in the instant matter, neither the child was abducted nor that was taken away unlawfully from the lawful guardianship of his father. Further submission is that, for providing custody of a minor child, is to be examined on the ground of consideration of not only legal right of the parties but more importantly the welfare of child. In the instant matter, the child is living with the opposite party Nos. 3 and 4 for last 7 to 8 years and the petitioner No. 2 did not make any effort or objection for his custody though admittedly, the fact was in his knowledge that the child is in custody of them. He added that at the very inception, the child was taken away by opposite party Nos. 3 and 4 when no one was there, to look after the child. He added that at the very inception, the child was taken away by opposite party Nos. 3 and 4 when no one was there, to look after the child. He added that the mother of the child as well as child were ailing with serious burn injuries and the opposite party Nos. 3 and 4 were looking after them. Thus, the submission is that the custody of the child with opposite party Nos. 3 and 4 cannot be termed as illegal detention, and therefore, the writ of Habeas Corpus would not lie in the instant matter and remedy lies elsewhere and thus, it has been prayed that instant Habeas Corpus writ petition is liable to be dismissed on this ground alone. 4. In support of his contention, the counsel for the opposite party Nos. 3 and 4 has placed reliance on the judgement and order rendered in the case of Captain Dushyant Somal v. Smt. Sushma Somal and others; 1981(2) SCC 277 and has referred para 3 of the judgement which is extracted as under; ''3. There can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grand-mother of the child was not subjected to any cross-examination; the appellant-petitioner did not choose to go into the witness box; he did not choose to examine any witness on his behalf. The evidence of the grand-mother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grand-mother. The High Court was quite right in coming to the conclusion that he appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The Writ, of Habeas Corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward.'' 5. Referring the aforesaid judgement, he submits that Hon'ble Supreme Court has held that the writ of Habeas Corpus is not to be issued as a matter of course unless clear grounds are made out. 6. On the other hand, learned counsel appearing for the petitioners submits that the petitioner No. 2 is the father of the child namely Deepak Kumar Tripathi and thus, he is natural guardian and has preferential right to claim the custody. He submits that Section 6 of the 'Act 32 of 1956', envisages the provisions that the natural guardian of a Hindu minor, in case of boy is the father and after him, the mother and thus the father cannot be deprived of the custody of a minor child unless he is shown to be unfit to be guardian. He added that admittedly the child is in custody of opposite party Nos. He added that admittedly the child is in custody of opposite party Nos. 3 and 4 and they are not the parents of the child and thus onus goes upon them to prove that the child is not illegally detained. He added that, in fact, taking the undue benefit of the situation that the petitioner No. 2 was very much involved in looking after her wife in hospital, as she sustained burn injuries due to an accident and thus, they have taken away the child without the cautious and proper permission of petitioner No. 2 and when the petitioner No. 2 asked the opposite party Nos. 3 and 4 to give the custody of his son, he was denied, and as such, this is clear cut a case of illegal and improper detention by the opposite party Nos. 3 and 4. 7. Considering the aforesaid arguments of learned counsel for the parties, the question which has drawn attention of this Court for consideration is that whether the writ of Habeas Corpus instituted by the petitioner No. 2 is maintainable? Law has been settled by the Hon'ble Apex Court in the case of Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others; 2019 (3) SCC (Criminal 433). Para 13 of the judgement extracted as under; ''13. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ Court has jurisdiction.'' 8. This question was also discussed in British Law as it was placed before the Queen Bench namely Queen v. Clarke, (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193. This question was also discussed in British Law as it was placed before the Queen Bench namely Queen v. Clarke, (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193. The Stalward British Judge while deciding the issue has held that ''But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian: and when delivered to him, the child is supposed to be set a liberty.'' 9. Further in case of Manju Malini Sheshachalam v. Vijay Thirugnanam and others; 2018 SCC Online Kar 621, the Hon'ble Apex Court has held in para 24 of the judgment which is read as follows; ''24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of respondent Nos. 1 and 2 even amounts to the offence of kidnapping punishable under Section 361 of IPC. Therefore, there is no merit in the contention that the writ petition is not maintainable and respondent Nos. 1 and 2 are in legal custody of baby Tanishka''. 10. Undoubtedly, in case of dispute regarding custody of a child, generally the remedy lies under 'Act 32 of 1956' or The Guardianships and Wards Act, 1890. It is very much clear that the writ of habeas corpus is issued in a case where the detention is without any authority of law or improper detention and thus the Court directs for producing the corpus. This can be issued where the detention of minor cannot be otherwise taken in the legal custody. 11. It is an admitted fact that the child is in custody of other than the parents. Further the custody was taken under a peculiar circumstances where the father of minor child was looking after the mother of the child, when she was ailing with burn injuries in hospital and could not have cautiously and improperly decided regarding the custody of the child. It seems that taking advantage of the situation, the opposite party Nos. 3 and 4 had taken away the child from the possession of the petitioner No. 2. It is an undisputed fact that the opposite party Nos. It seems that taking advantage of the situation, the opposite party Nos. 3 and 4 had taken away the child from the possession of the petitioner No. 2. It is an undisputed fact that the opposite party Nos. 3 and 4 are not the natural guardian and in view of the above circumstances the custody of the child with them can be termed as improper custody. 12. So far as the case of Captain Dushyant Somal (supra) referred by counsel for the opposite party Nos. 3 and 4 is concerned, there was dispute of custody between father and the mother which are covered under the definition of the Natural guardians in the 'Act 32 of 1956' and the factum is altogether different than the present matter. This case has later been considered in case of Tejaswani Gaud (supra). 13. After the abovesaid discussions and submissions, this Court is of the considered opinion that the instant habeas corpus petition is maintainable whereby the extraordinary remedy has sought for custody of the child. Thus, the preliminary objection taken by the counsel for the respondent Nos. 3 and 4 finds no force and is hereby rejected. 14. The factual matrix of the case is, that the marriage of the petitioner No. 2 was solemnized with the grand daughter of the respondent No. 3 and 4 on 11.3.2012. After the marriage, the wife namely Soniya Pandey @ Soniya and the petitioner No. 2 was living very happily and a son namely Vinayak Tripathi (corpus) was born from their wedlock on 31.10.2013. On 28.2.2014, an accident took place, wherein the corpus as well as the wife of the petitioner No. 2 sustained burn injuries and they were immediately taken to the hospital for treatment by the petitioner No. 2 and statement of the wife of petitioner No. 2 was also recorded there. On 24th March, 2014, the wife of petitioner No. 2 died. On 24th March, 2014, the wife of petitioner No. 2 died. After death of the wife, the every rites and ritual were performed by the petitioner No. 2 and, thereafter, the respondent No. 3 called upon the petitioner No. 2 on the pretext of the illness of grand mother-in-law and when petitioner No. 2 reached over there, he was surprised to see that she was not ill and, thereafter on the next day, when he was leaving the place, the respondent No. 3 refused to give back the corpus to petitioner No. 2 stating therein that when he (petitioner No. 2) would re-marry then they will give the corpus to him so that his son could be better nurtured. 15. In September, 2014, the respondent No. 3 proposed to the petitioner No. 2 to get marry with Aradhana Tripathi, who was widow and mother of a child from her first marriage and, as such, under the supervision and presence of respondent No. 3 & 4 including certain respected persons of the family, the marriage was solemnized with Smt. Aradhana Tripathi on 4th March, 2015 and, thereafter, the petitioner No. 2 is residing at his place at Padrauna, District-Kushi Nagar. The dispute arose when the respondent No. 3 was informed that the second wife has conceived pregnancy and, thereafter, the respondent Nos. 3 and 4 started insisting the petitioner No. 2 to get abort the fetus and threatened that if the petitioner No. 2 will not agree with the aforesaid desire of the respondent Nos. 3 and 4, they will not return back the corpus to him. On 31.10.2015, the petitioner No. 2 decided to celebrate the birthday of the corpus and intimated to the respondent Nos. 3 and 4 and requested to come with the corpus at the place of Hotel G-Star, Padrauna, but they refused to visit their and further denied to give the custody of the corpus to the petitioner No. 2. He again requested on 22.6.2016 for performing the tonsure (Mundan) ceremony of corpus and asked him to bring to the petitioner (corpus) but they again refused and started threatening and, thus, the wife of the petitioner No. 2 informed the higher Police Authorities at Kushi Nagar on 14th July, 2016. All efforts were made to get back the custody of the son of petitioner No. 2, but the respondent Nos. All efforts were made to get back the custody of the son of petitioner No. 2, but the respondent Nos. 3 and 4 refused to hand over the corpus to the petitioner No. 2. 16. The petitioner No. 2 moved an application on 10th September, 2016 before the respondent No. 2 and requested for restoring back the custody of the corpus to him. On the aforesaid application, the matter was referred before the Family Conciliation Centre and parties were required to present. The respondent No. 3 was kept on avoiding to appear before the Family Conciliation Centre and, ultimately, he appeared on 6.11.2016 and refused to give the corpus into the custody of the petitioner No. 2 and also denied to put his signature on the report of the Family Conciliation Center and, as such, the Family Conciliation Center sent the report to the effect that respondent No. 3 is not willing to hand over the corpus to the petitioner. The report was sent to the respondent No. 1 on 6.11.2016 by the Conciliation Center. On 11.11.2016, again an application was moved before the higher Authorities including the respondent No. 1 making the prayer for getting back the corpus in the custody of the petitioner No. 2, but that also remained in vain. Thereafter the instant petition was filed before this Court with the prayer, seeking direction to respondent No. 3 and 4 to produce the corpus, namely, Vinayak Tripathi before this Court and further prayer was made that the custody of the corpus (petitioner No. 1) Vinayak Tripathi, be given to natural guardian i.e. petitioner No. 2. 17. Submissions of learned counsel for the petitioners are that the death of mother of the corpus was occurred due to an accident, which is also evident from the dying declaration. Since, the relations were very much affectionate with the wife of petitioner No. 2 and, as such, he was in a very measurable condition after her death and, thereafter, on the desire of respondent Nos. 3 and 4, he decided to get re-married and, as such, the marriage has taken place. Submission is that while taking the decision of marriage, it was also in the mind of the petitioner No. 2 that nurturing of his child (corpus) can best be done in case, he re-marry, but after the second marriage which was done on the desire of the respondent Nos. Submission is that while taking the decision of marriage, it was also in the mind of the petitioner No. 2 that nurturing of his child (corpus) can best be done in case, he re-marry, but after the second marriage which was done on the desire of the respondent Nos. 3 and 4 and was basically organized by the respondent Nos. 3 and 4 and was solemanised in their presence, but later on, they conspired and denied to give the custody of the corpus to the petitioner No. 2. 18. He contended that later on, when the second wife namely Aradhana Tripathi conceived the pregnancy, they advised for abortion and in case of disagreement, they threatened not to give the custody of corpus and the instant controversy cropped up due to the same. 19. Applicant's counsel further argued that as per the settled proposition of law, the father is the natural guardian and, as such, the custody of a son is his legal right. This is not a case where there is any criminal case against the petitioner or his family members and further since the petitioner No. 2 (father) is alive and as such he excludes the right of any other persons with regard to the custody of corpus. 20. He next argued that the corpus would get all the conducive and ordinary comfort in the company of the petitioner No. 2 as he is headmaster in the primary school and earned sufficient money so as to take care the corpus and fulfill the need of the same. Further family background of the petitioner No. 2 is sound and well mannered. The whole family is educated and even the eldest brother of petitioner No. 2 is teacher and elder brother is an advocate and practicing in the High Court. 21. He further added that the instant controversy arose because the wife of the present petitioner namely Sonia Pandey died due to burn accident and even after making all effort to save her life and the life of the corpus and even after providing the best treatment, could not save the life of his beloved wife and needless to say that, all the expenses incurred upon the treatment was done by the applicant. He next submitted that conduct of the respondent No. 3 always remain fraudulent as at mediation centre, he refused to give the custody of the corpus. He next submitted that conduct of the respondent No. 3 always remain fraudulent as at mediation centre, he refused to give the custody of the corpus. Further, he always filed forged papers with regard to the study of corpus before the Court. It is forged because when the applicant No. 2 sought information under Right to Information Act, it was found that the admission of the corpus was terminated as the record could not be produced by the guardian. He has also drawn attention towards page 32 of the rejoinder-affidavit dated 9th May, 2018 which is a letter of head mistress of the Prathmik Vidyalay Bahrampur First, District Mau address to Sri Deepak Kumar Tripathi (petitioner No. 2). 22. He has also drawn attention of this Court that it is not a case where any charge of death of wife has ever been levelled upon the petitioner No. 2. In support of his contention, he attracted the attention at annexure 1 page 17 which is dying declaration of wife of the petitioner No. 2. He submits that dying declaration is itself evident that the death occurred due to burn accident and there was no any dispute between the petitioner and his wife. He has also indicated that so far as second marriage is concerned, the same was solemnized as arrange marriage on the behest of respondent No. 3 and marriage certificate also reveals that the brother-in-law has put in appearance on the certificate of marriage of the petitioner with Aradhna Tripathi. He also added that there are specific evidence regarding threat to the petitioner No. 2 for termination of pregnancy of second wife as Audio Clip are available which clearly shows that dispute with regard to hand over the corpus arose as second wife conceived pregnancy. 23. In support of his contention, the counsel for the petitioners has placed reliance on a case of Tejaswini Gaud and others (supra) and submits that in an identical situation the Hon'ble Apex Court has directed the person, who were having unlawful custody of the child, to the father, who was working as Principal in an educational institution. He has placed reliance on para 31 and 34 of the judgement which are quoted hereinunder; ''31. In the case at hand, the father is the only natural guardian alive and has neither abandoned nor neglected the child. He has placed reliance on para 31 and 34 of the judgement which are quoted hereinunder; ''31. In the case at hand, the father is the only natural guardian alive and has neither abandoned nor neglected the child. Only due to the peculiar circumstances of the case, the child was taken care of by the appellants. Therefore, the cases cited by the appellants are distinguishable on facts and cannot be applied to deny the custody of the child to the father. 34.The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child.'' 24. Referring the aforesaid judgement, counsel for the petitioners submits that the case of the present petitioners are squarely covered with the ratio of the aforesaid judgement. He added that because of the special circumstances, the child was with opposite party Nos. 3 and 4 and the petitioner No. 2 neither abandoned the child nor he has deprived the child of his right, love and affection. He added that now the petitioner No. 2 has come out of trauma and further there is female support to take care of the child, and therefore, the petitioner No. 2 (father) cannot be denied, the custody of the child. 25. He submits that case in hand is an example where the father ever abandoned the child or deprived the child with his love and affection. 25. He submits that case in hand is an example where the father ever abandoned the child or deprived the child with his love and affection. It is because of the fact that the first wife died and for a breathing period, the child was with his grand maternal uncle and merely because of the fact that grand maternal uncle will take care of the child for some time, he cannot deny to handover the custody of the child to his natural guardian. 26. He also added that the second wife is there and as such the better care, love and affection can be poured upon the child than the maternal grand parents, who are of considerable old age persons. He further submits that petitioner No. 2 is bona fide father who can have all due care to the interest of the corpus as he is headmaster and he has got entered the name of the corpus in his service records and also purchased the health insurance policy, investment plans and made nominee for 50 % of investment plan in the name of corpus. 27. He submits that as per Section 6 of 'Act 32 of 1956', the father is a natural guardian and whosoever is claiming the custody of the child other than father has to proof that the custody with him is not improper. Section 6 of the Act is quoted hereinabove; 6. Natural guardians of a Hindu minor.-The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.-In this section, the expression ''father'' and ''mother'' do not include a step-father and a step-mother. 28. Referring the aforesaid, he submits that intent of legislature is that the first and foremost right is having custody of a child is vest with the parents. This provision has been envisaged in the aforesaid act after due care and caution by the legislature. This indicates that unless there is such situation which negates the welfare of the child in the custody of the father, the father have all right of custody of his son. 29. Thus, he submitted that the present petitioner No. 2 is entitled to have the custody of his minor child and as a result, a writ of habeas corpus may be issued against the opposite party No. 3 and 4 to provide the custody of minor child (corpus petitioner No. 1) to the natural guardian i.e. petitioner No. 2 within stipulated period of time as may be fixed by this Court. 30. Per contra, learned counsel appearing for the State has opposed the contention aforesaid and submits that the situation is otherwise than it is narrated by the present petitioner No. 2 in the instant petition. He submits that a suspicious fire incident took place on 28.2.2014, wherein the wife of the petitioner No. 2 and child (corpus) sustained severe burn injuries and as a result the mother of the child died on 24.3.2014. He added that since then the opposite party Nos. 3 and 4 started care of the child in the hospital and thereafter he is living with them. He submits that the petitioner No. 2 always mount pressure over the opposite party Nos. 3 and 4 for providing the corpus to him. He has drawn attention towards the fact that the petitioner No. 2 did not visit the minor child for about three years and thereafter he suddenly started claiming the custody of the child. He pressed his contention and submits that no application under Section 12 for registration or any kind of demand or inquiry through any Court of law has ever been demanded by the petitioner No. 2. Further submits that the petitioner No. 2 got married with Aradhna Tiwary on 4th March, 2015 just after death of his wife and from wedlock of second wife, a child was also born. 31. Further submits that the petitioner No. 2 got married with Aradhna Tiwary on 4th March, 2015 just after death of his wife and from wedlock of second wife, a child was also born. 31. On the other hand, the contention of learned counsel for the opposite party Nos. 3 and 4 is that the child is living with the grand maternal parents since he was four months of age and father of the child got re-married and having two children out of aforesaid second marriage and if custody of the child (corpus) is been given to the petitioner No. 2, the child has to face anguish of step mother and naturally welfare and interest of child would face tremendous crisis. 32. Adding his arguments, he submits that it is not claimed that the petitioner No. 1 is not getting proper love and affection with his grand maternal parents and it is also not a case that he is not getting good education and thus the welfare of child is taking care of by them. 33. He added that the word 'welfare or interest' of a child cannot be measured in terms of money or physical comfort but it also goes to affectionate tie with the persons concern. He submits that the petitioner No. 1 (child) is living with the grand maternal parents for long period of time and as such his physical, mental and emotional growth can very well nurtured under the guardianship of opposite party No. 3 and 4. The conducive interest and welfare of the minor is not a mechanical parameter and further no law can decide it. It is the situation of a child which can only indicate regarding the welfare of the minor child. He further added that the child is well comfortable with the opposite party Nos. 3 and 4 and further he do not want to go with the petitioner No. 2 as the petitioner No. 2 and his newly wedded second wife and their sibling are very much unacquainted with the petitioner No. 1. 34. In support of his contention, the counsel for the respondent Nos. 3 and 4 has placed reliance on a case in Nil Ratan Kundu and another v. Abhijit Kundu, (2008) 9 SCC 413 and submits that the Apex Court has held that for custody of a child, the paramount consideration is the welfare of the child. 35. 34. In support of his contention, the counsel for the respondent Nos. 3 and 4 has placed reliance on a case in Nil Ratan Kundu and another v. Abhijit Kundu, (2008) 9 SCC 413 and submits that the Apex Court has held that for custody of a child, the paramount consideration is the welfare of the child. 35. He has further placed reliance on a case in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 and submitted that the welfare of the child is not to be measured in terms of money merely because of the physical comfort of the child but tie of affection is be regarded. 36. Concluding his argument, he submits that the child does not recognize his father because of his negligence and after the death of his mother, the child is only the last living memory of her daughter. Further submits that he is studying in a reputed school and they are well off and they are willing in future to buy some property in the name of petitioner No. 1 and to make some fixed deposit amounts if this Court such directs. Thus, the submission is that the prayer of petitioner No. 2 for handing over the custody of the child (alleged corpus) to him is not justifiable and as such the instant habeas corpus petition deserves to be dismissed. 37. Having heard learned counsel for the parties and after perusal of material placed on record, the issue before this Court is that whether the custody of petitioner No. 1 (corpus) is illegal or improper with opposite party Nos. 3 and 4. The petitioner No. 2 admittedly being the father of the child has claimed the custody of petitioner No. 1 and has tried to demonstrate that the child has illegally and improperly been detained by opposite party Nos. 3 and 4. 38. In the instant matter, due to an accident, the child (petitioner No. 1) and the wife of petitioner No. 2 got burn injuries and both were admitted in the hospital. It is also the fact that the petitioner No. 2 was looking after them in the hospital and has meeted out all the expenses incurred upon the medical treatment and in support thereof has annexed certain bills and vouchers. It is also the fact that the petitioner No. 2 was looking after them in the hospital and has meeted out all the expenses incurred upon the medical treatment and in support thereof has annexed certain bills and vouchers. Under these circumstance, the grand maternal parents had taken away the child for short period of time for taking care of but in the meantime, during the course of medication, the mother of child, succumbed due to injuries and naturally husband i.e. petitioner No. 2 was in tremendous pain and thus for certain period of time, he could not persuade the custody of the child. This does not mean that he is not willing to look after his child. There is also one of the fact that opposite party Nos. 3 and 4 persuaded the petitioner No. 2 to get re-marry and on their insistence the petitioner become ready for remarriage and they were also remain present at the time of marriage. It is a fact that the petitioner No. 2 was always in contact with the opposite party No. 3, 4 and the corpus. 39. So far as the question with regard to the better nurturing as well as caring is concerned, the petitioner is well off, as he is teacher and is getting handsome salary. Further opposite party Nos. 3 and 4 could not dispute the fact that the petitioner No. 2 is a reputed person and his conduct and behaviour is aboveboard in the society. Admittedly, the petitioner No. 2 is father of the petitioner No. 1 (corpus) and as per provisions of the 'Act 32 of 1956', the father is natural guardian of a child. While enactment of the aforesaid Act, the fact regarding conduciveness, interest and welfare of the child must have been in the mind of the legislature and therefore the father was considered as Guardian and thus if any thing is said contrary to the aforesaid, the onus always lies upon the person who is saying otherwise. 40. Further while considering the contention of counsel for the opposite party Nos. 3 and 4, in respect with the fact that the child does not recognize his father, cannot be a ground, not to hand over the custody of such child to his father. 40. Further while considering the contention of counsel for the opposite party Nos. 3 and 4, in respect with the fact that the child does not recognize his father, cannot be a ground, not to hand over the custody of such child to his father. This can also not be a ground that the child is last living memory of the daughter of grand maternal parents as the parameter which has been settled is that interest and welfare of the child is a paramount consideration for custody of a child. Further, this can also not be a ground that the child goes to a reputed school or any fixed deposit amount or any property will be executed/transferred in the name of the minor child. 41. So far as the reliance was placed by the opposite party Nos. 3 and 4 on the cases of Nil Ratan Kundu and another v. Abhijit Kundu, (2008) 9 SCC 413 and Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 , those were very well considered, in case of Tejaswini Gaud (supra). 42. While going through the aforesaid judgement, it reveals that the factum of both the cases are altogether different than the present case. Since the dispute of the custody of the child was between the parents i.e. father and mother in the aforesaid matters, but so far as the present matter is concerned, the custody of the child is with the grand maternal parents and that too on the ground that the child is last living memory of their grand daughter, which cannot be said to be a justifiable ground. Further submission on behalf of the respondent Nos. 3 and 4 that they will manage and transfer certain property in the name of the corpus (petitioner No. 1), which is as per settled law cannot be ground for having custody of a minor child. 43. This Court has also noticed that the grand maternal parents i.e. respondent Nos. 3 and 4 are of considerable old age persons and it would be very hard for them to take care of a minor child, whereas petitioner No. 2 being a natural guardian and having family assistance, can look after the nurturing of the child in better way. 44. 3 and 4 are of considerable old age persons and it would be very hard for them to take care of a minor child, whereas petitioner No. 2 being a natural guardian and having family assistance, can look after the nurturing of the child in better way. 44. This Court is of considered opinion that subject to the exceptions, in the Indian Society, naturally a father or mother would be more affectionate than other persons including relatives and as such while enactment of the 'Act 32 of 1956', the legislature respecting the customs and natural phenomenon has made provision that the father and after him, mother is the Natural guardian of a minor child. If there are situations that welfare of child is not secured with the father as there can be certain reasons, as for example, if the father is drunker; he is involved in immoral and unlawful activity; he is not able to care himself or to the child the situation would be different, but in the instant matter the respondent Nos. 3 and 4 has failed to substantiate the aforesaid reasons against the petitioner No. 1. 45. In such situation, the onus goes upon the person who is having a custody not being a natural father to prove that welfare of the child is not secured in the custody of natural father. In the instant matter, the respondent Nos. 3 and 4 has failed to substantiate that the petitioner No. 2 (father) is not a suitable guardian. 46. It has also been noticed that it is not a case that the petitioner No. 2 (father) did not take all care and caution after the birth of the corpus and it is due to misfortune, an accident took place, whereafter naturally the petitioner No. 2 went into trauma but thereafter he is continuously trying to get the custody of his child. 47. It is decipherable from perusal of the record appended with the writ petition that the conduct and behaviour of the respondent Nos. 3 and 4, so far as access of the child to his father is concerned, prima facie seems to be unexpected. 47. It is decipherable from perusal of the record appended with the writ petition that the conduct and behaviour of the respondent Nos. 3 and 4, so far as access of the child to his father is concerned, prima facie seems to be unexpected. It is not understandable that why the grand maternal parents are so adamant, not to give the custody of the child to his father as he does not seem to be unfit to be guardian, thus this is a best example of improper custody. 48. Resultantly, it is directed that the respondent Nos. 3 and 4 shall hand over the custody of the child to the petitioner No. 2, i.e. Deepak Kumar Tripathi (father) on 20th October, 2022 at his residence. Both the parties shall act upon in the interest of the child and and shall co-operate with each other. 49. Further looking into the well being of the child and making the child comfortable, the respondent Nos. 3 and 4 shall have access to the child for a period of four months, at the residence of the petitioner No. 2, in between 10 a.m. to 5 p.m. on every Sunday of each month and the petitioner No. 2 shall make it comfortable. 50. Accordingly, the Habeas Corpus writ petition is allowed. 51. No order as to costs.