JUDGMENT : 1. Heard Shri Amit Pandey, Advocate alongwith Shri Bisunbablu Mishra, learned counsel for the petitioner, Shri Yyomesh Chandra Shukla, learned counsel for the opposite parties no. 4 to 7, Shri Diwakar Singh and Shri Hari Shanker Bajpai, learned Additional Government Advocates for the opposite parties 1 to 3 and perused the record. 2. The present Habeas Corpus Writ Petition has been filed by petitioner-Smt. Sulekha Devi, who is maternal grand mother (Nani) of detenue Diksha Kumari @ Chutki, with the following prayer : I. A writ, order or direction in the nature of Habeas Corpus directing the opposite parties to produce the detenue/Corpus before this Hon'ble Court and set her free from the clutches of opposite parties 4 to 7. ii. Any other order or direction which this Hon'ble Court may deem just and proper under the circumstances of the case also be passed in favour of the petitioner. iii. Award the cost of the writ petition in favour of the petitioner. 3. In compliance of this Court’s order dated 27.03.2023 petitioner, Sulekha Devi, (maternal grand mother of the detenue), opposite party 4-Vijay Modi, opposite party no.5-Reena Modi, opposite party no.6-Pankaj alias Bittu and opposite party no.7-Ankita Devi alongwith detenue Diksha Kumari @ Chutki are present in person before this Court. They have been identified by their respective counsels. 4. Detenue Diksha Kumari @ Chutki, as per the case setup by the petitioner in the petition, is that the marriage of the daughter of Sulekha Devi namely Aneesha Devi was solemnized with Sanjay Baranwal on 11-07-2016 as per the Hindu rites and rituals. After the marriage, the family members of Sanjay Baranwal subjected her daughter to cruelty on account of demand of dowry and when the demand of dowry could not be fulfilled, they killed the daughter of petitioner-Sulekha Devi. In this regard an FIR was lodged on 19-01-2023 under section 498A, 304B IPC and section ¾ Dowry Prohibition Act against seven persons namely Sanjay Modi @ Guddu (husband of deceased Aneesha Devi), Arjun Modi (father in law of the deceased), Uma Devi (mother in law of the deceased), Vijay Modi (elder brother in law of the deceased, Reena Modi (elder sister in law of deceased) Pankaj @ Guddu (elder brother in law of the deceased) and Ankita Devi (elder sister in law of the deceased). It has been averred in the present petition that when the deceased died, she left behind her a 5 year old daughter Diksha Kumari @ Chutki. 5. In the aforesaid criminal case, after investigation chargesheet was submitted against Sanjay Modi @ Guddu (husband of the deceased) Arjun Modi (father-in-law of the deceased) and Uma Devi (mother-in-law of the deceased); whereas the names of Vijay Modi (Jeth of deceased), Reena Modi (Jethani of deceased), Pankaj @ Bittu (Jeth of deceased) and Ankita Devi (Jethani of deceased) were dropped from the chargesheet. The husband of deceased, mother in law of the deceased and father in law of the deceased are still in judicial custody. 6. It has been informed by the opposite parties no. 4 to 7 that Smt. Uma Devi (mother-in-law of the deceased) has been granted bail by a coordinate bench of this Court vide order dated 1.5.2023 but she has not been released from jail till date and necessary formalities of her release are going on. 7. Learned counsel for the petitioner submits that there is danger to the life of detenue Diksha Kumari alias Chutki (minor daughter of the deceased) if she remains in the custody of opposite parties no. 4 to 7, who have no love and affection towards detenue Diksha Kumari alias Chutki as her mother Aneesha Devi has already been done to death jointly by the in laws' family members of the deceased Aneesha Devi and some of them are in jail at present. Thus, there is no one, who has love and affection towards the said detenue-minor child, whose welfare is of paramount importance and apprehends that her life would be in peril if she remains in the custody of the accused persons. Therefore, it has been urged by the learned counsel for the petitioner that petitioner, who is maternal grand-mother (Nani) of detenue Diksha Kumari alias Chutki, has natural love and affection towards the minor child detenue and the welfare of the minor child detenue is safe with her maternal grand mother, hence she may be given in her custody where she will be properly looked after as she has all the means to bring up the child. 8. 8. Learned counsel for the petitioner further submits that the names of opposite parties 4 to 7 have been dropped from the charge-sheet and the petitioner is planning to file protest application against the final report and is also moving an application for further investigation in this matter, thus the detenue minor child is being illegally detained by the opposite parties 4 to 7, as such the custody of detenue may be given to the petitioner as the opposite parties 4 to 7 have no legal right and authority to keep the minor child detenue in their custody, if her mother is not alive and real father alongwith grand father and grand mother of the detenue (minor child) are also in jail. He further submits that Hon'ble Apex Court in catena of decisions has held that if there is criminal case against father, grand mother and grand father of detenue minor child and they are accused of murder of mother of detenue then it is not safe to hand over the custody of the minor child to the family members against whom the charges are levelled. The opposite parties 4 to 7 are keeping the detenue minor child only for the shame of the society and they have no any intention to look-after the future and welfare of the detenue minor child. 9. Per contra, learned counsel for the opposite parties 4 to 7 submits that the petitioner, who is real maternal grand mother (Nani) of the detenue has no legal right to take the custody of the minor child (detenue), whereas the opposite parties 4 to 7, who are closely related to the detenue-minor child, may look after the minor child in absence of real mother of detenue, who is no more and real father, grand father and grand mother of the detenue minor child are currently in jail. 10. Lastly, learned counsel for the opposite parties 4 to 7 submits that in the event the custody is handed over to the maternal grand mother, the grand mother of detenue, namely, Smt. Uma Devi may be given the visitation rights after being released from jail. He further added that whenever, the father of the detenue-minor child is released from jail, the custody may be reverted back to the father, who is natural guardian. 11. He further added that whenever, the father of the detenue-minor child is released from jail, the custody may be reverted back to the father, who is natural guardian. 11. Shri Diwakar Singh as well as Hari Shanker Bajpai, learned Additional Government Advocates for the opposite parties 1 to 3 while supporting the arguments as advanced by the learned counsel for the petitioner submits that in present circumstances and scenario of the case, the custody of detenue-minor child in the hands of opposite parties 4 to 7 is not safe as the real father, real grand mother and real grand father of the detenue-minor child are accused of murdering of her real mother Aneesha Devi and they are detained in jail. Thus, looking to the welfare of the detenue-minor child and to meet the ends of justice it would be suitable and safe if the custody of the detenue-minor child is given to her maternal grand mother (Nani), who is real mother of deceased-Aneesha Devi. 12. After considering the arguments as advanced by the learned Counsel for the parties and after perusal of the averments as well as taking into facts in its entirety, this Court is of the view that detenue minor daughter Diksha Kumari @ Chutki is not safe in the hands of opposite parties. 4 to 7, who are simply relatives but to avoid disrepute and shame in the society, they are keeping the said detenue with them. The Hon’be Supreme Court in the case of Nithya Anand Raghvan V State (NCT of Delhi) and another 2017 8 SCC 454 was pleased to observe that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations by the Hon’ble Supreme Court made in paras 44 to 47 of the judgment are as follows:- "44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. 45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247 , has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 , it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. 47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child." Further, this Court is of the view that life of minor child detenue is not safe in the hands of opposite parties 4 to 7 and this Court is also in doubt about the welfare of the detenue-minor child in the hands of opposite parties 4 to 7. In these circumstances, a writ of Habeas Corpus is issued and the opposite parties nos. 4 to 7 are directed to hand over the minor child (Detenue) to the petitioner-Sulekha Devi (maternal grand mother (Nani). This Court also hopes and trusts that the maternal grand mother (Nani) Sulekha Devi, who is present before this Court shall give full love and affection to her grand daughter (detenue-minor child (girl) aged about 5 years) and will take proper care of the said detenue, who will be given good education apart from decent life. It is made clear that the custody of the detenue minor child (girl) will remain with the present petitioner (maternal grand mother (Nani) till any order passed by the competent court for grant custody in accordance with law. However, when the father of the detenue-minor child (who is not party to the present petition) is released from jail and if he so desires, he may approach the competent court for claiming the custody of her daughter Diksha Kumari Chutki in accordance with law and in that circumstance, the court concerned will be free to form his opinion uninfluenced by the observation made by this Court in the present case. 13. As regard the visitation rights to the grand mother (Dadi) namely Uma Devi of the detenue-minor (child) it is provided that it will be open for her to move appropriate application before this Court at the relevant time. 14. With the aforesaid observations and directions, this Habeaus Corpus petition is allowed.