Musheera Khatoon And Anr. vs State Of U.P. And 8 Others
2014 Latest Caselaw 9647 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved 
 
Court No. - 22
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 43244 of 2014
 

 
Petitioner :- Musheera Khatoon And Anr.
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Yogendra Kumar
 
Counsel for Respondent :- Govt. Advocate,Ajay Kumar Mishra,Azad Khan
 

 
Hon'ble Akhtar Husain Khan,J.

Present writ petition has been filed under Article 226 of the Constitution of India with prayer to issue a writ order or direction in the nature of habeas corpus directing the respondents to produce the corpus Aahaj petitioner no.2 before this Court and to hand over custody of corpus to her mother petitioner no.1.

Shri Yogendra Kumar appeared for petitioners. Learned A.G.A. appeared for respondent nos. 1 to 3. Shri Ajay Kumar Mishra appeared for respondent nos. 4 to 9.

Affidavits have already been exchanged between the parties.

I have heard learned counsel for the parties and gone through petition as well as affidavits filed by parties.

It has been alleged on behalf of petitioners that petitioner no.1 was married with respondent no.4 on 15.11.2012. After their marriage petitioner no.2 was born by their wedlock. But respondent nos.4 to 9 started to harass petitioner no.1 for demand of dowry and ultimately they compelled her to leave house of in-laws without her minor child petitioner no.2. Thereafter petitioner no.1 lodged report in police whereupon Crime no.992 of 2014, under sections 498-A, 323, 506 I.P.C. and section ¾ Dowry Prohibition Act was registered in Police Station Kadaura, District Jalaun, but no action was taken by police. Consequently present writ for habeas corpus has been filed.

It has been admitted on behalf of respondent nos. 4 to 9 that petitioner no.1 is married wife of respondent no.4 and petitioner no.2 is their legitimate son, but it has been denied that respondent nos. 4 to 9 ever demanded dowry and harassed petitioner no.1 for demand of dowry.

It has been alleged by respondent nos. 4 to 9 that corpus petitioner no.2 was born on 20.8.2013. Thereafter petitioner no.1 lived in the house of respondent no. 4 with corpus till 1.6.2014, but she never feeded milk to corpus petitioner no.2. On 1.6.2014 having assaulted mother of respondent no.4 petitioner no.1 left the house of her husband respondent no.4 leaving corpus at the house of respondent no.4 to press her demand that mother of respondent no.4 shall not live with her. Thereafter respondent no.4 went to the house of father of petitioner no.1 alongwith child and tried to pacify petitioner no.1. But father of petitioner no.1 assaulted him and refused to take the son of petitioner no.1, who is corpus petitioner no.2.

It has been alleged on behalf of respondent nos. 4 to 9 that petitioner no.1 is uneducated lady and is living in village while respondent no. 4 is graduate with English and is living in Twon Kadaura, District Jalaun. He can provide better schooling to minor child and welfare of child lies in the hands of respondent no.4.

In rejoinder affidavit petitioner no.1 has denied the allegation that she never feeded her milk to her child corpus petitioner no.2. She has added that Doctor had prescribed Farex as extra Nourishment.

In the case of Rajesh K. Gupta Vs. Ram Gopal Agarwal and others (2005) 5 S.C.C. 359, Hon'ble Apex Court has held that "it is well settled that in an application seeking a writ of habeas corpus for custody of minor child the principal consideration for the Court is to ascertain whether the custody of child can be said to be lawful or illegal and whether the welfare of child requires that the present custody should be changed."

In view of above pronouncement of Hon'ble Apex Court first of all I have to see whether the custody of child petitioner no.2 with his father respondent no.4 can be said to be lawful or illegal.

It has been stated in para 3 of the writ petition which has been supported by affidavit filed by Iliyas Beg that after marriage of petitioner no.1 with respondent no.4 her in laws made harassment of petitioner no.1 for demand of dowry which compelled petitioner no. 1 to leave house of her in laws without her minor child for which petitioner no.1 has lodged report in police on the basis of which Crime no.992 of 2014, under sections 498-A, 323, 506 I.P.C. and section ¾ Dowry Prohibition Act has been registered in Police Station Kadaura, District Jalaun.

In para 4 of counter affidavit filed on behalf of respondent nos.4 to 9, respondent no.4 Mohd. Khan has denied allegation of demand of dowry and harassment of petitioner no.1. In para 8 of counter affidavit of respondent no. 4 it has been averred that after birth of child petitioner no.2 on 20.8.2013 petitioner no.1 lived in the house of respondent no.4 up to 1.6.2014 but during these nine months she never feeded milk to child.

In para 5 of counter affidavit para 4 of petition has been denied and has been stated that on 1.6.2014 after having assaulted mother of respondent no.4 petitioner no.1 left the house of respondent no.4 leaving corpus at the house of respondent no.4 to press her demand that she shall not live with mother of respondent no.4.

In counter affidavit filed by respondent no.4 in para 4 of heading "In EXCESS" it has been stated that respondent no.4 provided treatment to petitioner no.1 as well as her child petitioner no.2 in Private Hospital, Kanpur but petitioner no.1 leaving the child abandoned left the hospital alongwith his family members just after 3 days i.e. on 24.8.2013. In said para 4 of counter affidavit it has been stated that copy of discharged card of petitioner no.1 as well as Jachcha Bachcha Card is being annexed as C.A.5 to counter affidavit.

In para 3 of rejoinder affidavit petitioner no.1 has denied contents of paragraph 4 of counter affidavit has reiterated contentions of para 3 of petition.

In para 4 of rejoinder affidavit petitioner no.1 has denied the contentions of para 5 of counter affidavit and has stated that on 1.6.2014 after having beaten her respondent nos. 4 to 9 thrown out of house and detained petitioner no.2 illegally. It is not true that she has left child at the house of respondent no.4.

In para 7 of rejoinder affidavit she has further denied contents of para 8 of courter affidavit and has stated that it is wrong to say that after birth of son on 30.8.2013 she has never feeded milk to the child. She has stated that Farex first Powder was prescribed for extra nourishment.

C.A.5 mentioned in para 4 of counter affidavit is discharge card of Mrs. Mushera Begum and discharge card of baby Mrs. Mushera Begum. In discharge card of Mrs. Mushera Begum date of admission has been mentioned 21.8.2013 and date of discharge has been mentioned 24.8.2013. In discharge card of baby Mrs. Mushera Begum date of admission has been mentioned 22.8.2013 and date of discharge has been mentioned 26.8.2013. In discharge card of Mrs. Mushera Begum there is no mention that she has left hospital voluntarily without permission of doctor. In discharge card of baby Mrs. Mushera Begum there is no mention or entry to show that baby has been abandoned by mother.

Annexure C.A. 1 mentioned in para 8 of counter affidavit is prescription of Smt. Ramkali Memorail Nursing Home, Kanpur dated 3.9.2013. In it age of baby has been mentioned as 13 days and six medicines have been prescribed but there is no entry or mention in this annexure to show that baby has been refused feeding by mother. There is nothing on record to show that petitioner no.1 never feeded milk to her child petitioner no.2 till the date on which she left house of respondent no.4.

In para 9 of counter affidavit filed by respondent no.4 it has been stated that "that respondent no.4 went to the house of petitioner no.1 in village Mumtajabad, District Jalaun alongwith child to pacify the petitioner family for welfare of family and child, in response to this approach petitioner no.1 father beaten respondent and challenged him to see in court and refused to take the son (petitioner no.2)"

Averment made in para 9 of counter affidavit shows that petitioner no.1 left the house of respondent no.4 and went to her father. Thereafter respondent no.4 went to the house of father of petitioner no.1 with child and tried to hand over the child to petitioner no.1 to pacify the petitioner's family for welfare of family and child.

In view of averment made in para 9 of counter affidavit, I am of the view that allegation of respondent no.4 that petitioner no.1 never feeded her child petitioner no.2 after birth of petitioner no.1 is against truth. Petitioner no.1 has left the house of respondent no.4 and is living at her father's house without child is admitted to both parties. Age of child petitioner no.2 is below two years is also admitted to parties.

In view of discussion made above after having gone through petition as well as affidavits filed by parties I am of the view that there is sufficient ground to believe that petitioner no.1 has been compelled by respondent no.4 as well as her in laws to left the house of her husband without her child below two years and she has been deprived with custody of child unlawfully. Thus I am of the view that custody of child with her father respondent no.4 is illegal.

In view of above pronouncement of Hon'ble Apex Court, now I have to consider as to whether welfare of child requires change of custody.

It has been alleged by respondent no.4 that he is graduate and is living in Town, while petitioner no.1 is uneducated and is living in village. Therefore, respondent no.4 is in better position to provide maintenance and schooling to his son petitioner no.2.

Considering the age of corpus I am of the view that at present care and company of mother is needed more than those of father. Therefore at present welfare of child lies in the hands of mother.

In view of discussion made and conclusion drawn above I am of the view that present writ petition should be allowed and custody of child corpus petitioner no.2 should be restored to petitioner no.1.

The writ petition is allowed accordingly. Respondent nos.4 to 9 are directed to produce corpus petitioner no.2 before Chief Judicial Magistrate, Jaluan at Orai on 17.12.2014, who shall hand over custody of corpus petitioner no.2 to petitioner no.1 Musheera Khatoon. If respondent no.4 fails to produce corpus petitioner no.2 before Chief Judicial Magistrate, Jaluan at Orai on the date fixed, respondent no.3 shall produce corpus petitioner no.2 before Chief Judicial Magistrate, Jaluan at Orai on 29.12.2014, who shall hand over corpus petitioner no.2 to petitioner no.1 Musheera Khatoon. If petitioner no.1 Musheera Khatoon does not appear before Chief Judicial Magistrate, Jaluan at Orai for taking custody of child or does not take custody of child, respondent no.4 shall be permitted to detain child.

Order passed in this writ petition shall be subject to order of competent Civil Court/Family Court. Parties are at liberty to approach competent Civil Court/Family Court, who shall pass order in accordance with provisions of Guardian and wards Act and personal law applicable on parties after due enquiry regarding welfare of child.

Order Date :- 8.12.2014

RU