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2022 DIGILAW 924 (MP)

Pilu @ Priya v. State of M. P.

2022-07-12

AMAR NATH KESHARWANI, VIVEK RUSIA

body2022
ORDER 1. The petitioner being a mother of respondents No.7 and 8 has approached this Court by way of writ of habeas corpus. According to the petitioner she is mother of respondents No.7 and 8 who are in illegally custody of respondents No.4 to 6. Respondent no.4 is grand father, respondent No.5 is uncle and respondent No.6 is wife of respondent No.5 undisputedly respondents No.7 and 8 are grand children of respondent No.5 therefore, it cannot be said that they are in illegal custody of the respondent No.5. 2. The petitioner before approaching this Court, approached Sub-Divisional Magistrate by way of an application filed under section 97 of Cr.P.C. seeking release of respondents No.7 and 8 from the custody of respondents No.4 to 6. Vide order dated 16.12.2021 the Sub-Divisional Magistrate has dismissed the application as respondents No.7 and 8 have shown unwillingness to go with the mother. 3. Today also, they are present before this Court and on specific query made by us, they have straight way refused to go with the mother i.e. petitioner and stated that they are willing to reside with respondents No. 4 to 6. 4. Counsel for the petitioner submits that petitioner being a natural guardian has a right to take the custody of respondents No.7 and 8. 5. Counsel for the respondents No.4 to 6 has pointed out that the petitioner has not claimed any relief to this effect in this petition. The petitioner is only seeking relief of release of respondents No.7 and 8 from the custody of respondents No.4 to 6 and further seeking directions to the State authorities to provide protection to them. 6. Such a relief cannot be granted as the respondents No.7 and 8 are not in the illegal custody of respondents No.4 to 6. They are grand father and uncle and they form a family. The matter was earlier referred to the mediation where also the respondents No.7 and 8 have refused to go with the mother. 7. The petitioner has not disclosed the source of income she is residing alone. Counsel for the respondent submits that she is earning by doing household work in other houses. In her absence, no one is there in the family to look after the children. 7. The petitioner has not disclosed the source of income she is residing alone. Counsel for the respondent submits that she is earning by doing household work in other houses. In her absence, no one is there in the family to look after the children. The welfare of the children is paramount over and the above the statutory provisions as held by the apex Court in case of Nil Ratan Kundu and another v. Abhijit Kundu reported in 2008 (9) SCC 413 in which it has held that:- Principles governing custody of minor children “ In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force. The legal position in India follows the doctrine laid down in English and American Law”. The apex Court in another case of Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others reported in 2019 (7) SCC 42 in which it has held that:- Welfare of the minor child is the paramount consideration “ The Court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the Court ought to be child interest and welfare of the child.” In view of the above, no writ can be issued to respondents No.4 to 6 to release respondents No.7 and 8 for sending them in Bal Niketan and other shelter homes. 8. At this stage, counsel for the petitioner submits that petitioner being a mother has right to meet the children i.e. respondents No.7 and 8. Counsel further submitted that husband of the petitioner committed suicide. Although we are not going into the controversy under what circumstances he committed the suicide. 10. 8. At this stage, counsel for the petitioner submits that petitioner being a mother has right to meet the children i.e. respondents No.7 and 8. Counsel further submitted that husband of the petitioner committed suicide. Although we are not going into the controversy under what circumstances he committed the suicide. 10. Since the petitioner is mother and she is living separately without children since last one year therefore, we permit her to meet her children i.e. respondents No.7 and 8 by visiting at the nearby aganwadi centre in the presence of aganwadi worker/assistant on every 3rd Sunday of the month from 10:00 a.m. to 12:00 p.m. initially for two hours and after six months for four hours. Accordingly, the writ petition is disposed of.