Ramesh Chand Joshi And Another vs State Of U.P. Thru Secy. And 8 ...
2016 Latest Caselaw 4376 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 28
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 11921 of 2015
 

 
Petitioner :- Ramesh Chand Joshi And Another
 
Respondent :- State Of U.P. Thru Secy. And 8 Others
 
Counsel for Petitioner :- H.N. Shukla,R.R. Shukla
 
Counsel for Respondent :- Govt.Advocate,A.N. Bhargava,Amit Singh Chauhan,Rajul Bhargava
 

 
Hon'ble Abhai Kumar,J.

This writ petition has been filed by Ramesh Chand Joshi for issuing a writ, order or direction in the nature of habeas corpus for producing the petitioner no. 2/corpus Kumari Tripur Sundari Joshi before this court who is said to be in illegal detention of respondent nos. 4 to 9.

The respondent nos. 4 to 9 appeared before this court and filed their counter affidavit.

Various counter affidavits and rejoinder affidavits have been filed from both sides.

Heard learned counsel for the parties and perused the records.

Brief facts of the case are as follows:

Petitioner No. 1 was married to Dr. Tulsi on 3.7.2006 who was sister of respondent nos. 4 to 9. This is admitted fact that she died out of cancer. It is also admitted fact that out of wedlock of petitioner no. 1 and Dr. Tulsi, petitioner no. 2 - corpus born out and it is also not disputed that at present she is in custody of respondent nos. 4 to 9.

There are certain facts regarding the conduct of petitioner as stated by respondent nos. 4 to 9 in their counter affidavit, that petitioner no. 1 wanted some money from the respondents. He did not care his wife during her illness and that corpus was living from the very beginning with the respondent nos. 4 to 9 and her Nani who has since expired but these facts are not very relevant for the disposal of the present writ petition.

There are also dispute regarding the benefits of service that are being accorded after her death which will be taken in the later part of this order. This is not disputed that pensionary benefits after the death of Dr. Tulsi, the wife of petitioner no.1, is being given to the petitioner no. 1.

As far petitioner no. 1 is concerned, he is a natural guardian of corpus whereas respondent nos. 4 to 9 are Mama and Mausi of the corpus. Therefore, in normal course, father is always entitled for the custody of minor in preference to Mama and Mausi and, in this regard it is submitted by the learned counsel for the respondents that petitioner no. 1 is irresponsible person and during lifetime of his wife, he did not care her and his wife was living with her parents due to differences with her husband.

Certain papers have been filed by the respondents that an FIR was lodged by the deceased Dr. Tulsi in which address of the respondents was given. It is also contended by the learned counsel that all the expenses of treatment of Dr. Tulsi had been undertaken by the respondents as well as her mother. It is also contended by the learned counsel that money was given to the petitioner no. 1 as this money was demanded by him and statement of bank account regarding that has also been annexed.

From the above narrated facts by the respondents no. 4 to 9, it cannot be reached conclusively that petitioner ever illtreated deceased Dr. Tulsi. It cannot also be said that she was not taken proper care by petitioner no. 1 as there is no concrete proof regarding that.

In all probability, Dr. Tulsi was living at the house of her mother as and when she fell ill and in the circumstances it can be accepted that Dr. Tulsi was taken care by the respondents as well as her mother and on the basis of that it can also be inferred that when Dr. Tulsi fallen ill she was with respondents, then corpus was also shifted there from the house of the petitioner no. 1 and on the basis of that it can be said that petitioner no. 1 submitted wrong facts regarding taking away of corpus from his home. Inspite of all these facts, the only fact that is to be seen in the present case, whether petitioner no. 1 is entitled for custody of corpus as well as where the welfare of the corpus lies.

As already said above, from the facts it cannot be accepted that petitioner no. 1 maltreated Dr. Tulsi and this cannot also be said that he exhorted money by pressure from respondents and from mother of Dr. Tulsi and on that basis custody of minor cannot be denied.

Learned counsel for the respondents vehemently argued that petitioner no. 1 is a lawyer but he has no income and is living alone in his house. In the circumstances, he is not a fit person for the custody of the corpus. It is further submitted by the learned counsel that petitioner no. 1 is not having sufficient means for the welfare of minor and there is none to look-after the corpus at the house of petitioner no. 1.

Quelling that argument, learned counsel for the petitioner submitted that petitioner no. 1 is a lawyer of repute and having experience of several years. He is earning well enough and can very well take care of the needs of the corpus. It is also submitted by the learned counsel that the family pension of the deceased Dr. Tulsi is being given to the petitioner, besides several lacs rupees has also been received by the petitioner as gratuity and other benefits of Dr. Tulsi, and petitioner is financially sound and cannot be said that he is financially weak or not in a position to take care of corpus.

So far as the financial condition of petitioner no. 1 is concerned that cannot be doubted. He is a lawyer of several years of standing and is practising in the High Court of Allahabad, therefore, it cannot be said that he is not earning anything, rather it can be assumed that he is earning sufficiently. Moreover he is also getting pension after the death of his wife Dr. Tulsi and about Rs. 26 lacs has been received by him as gratuity and other benefits of Dr. Tulsi. In the circumstances, it cannot be said that petitioner no. 1 is not having sufficient means for maintaining the corpus.

Income of respondent nos. 4 to 9 is shown by learned counsel for the respondents and from that it can also be inferred that they are also capable of taking proper care of the minor.

Learned counsel for the respondents argued that custody of the minor is with them for the last six years and now that custody should not be disturbed.

The contention raised by the learned counsel is supported by the law propounded by Apex Court in Civil Appeal No. 11 of 2010 arising out of SLP (c) No. 24148 of 2007, Athar Hussain Vs. Syed Siraj Ahmed and others, decided on 5.1.2010, but the facts of the case are not applicable in the present case. In that case Hon'ble Apex Court discussed the interim custody of the minor and case for custody was going on in the court of Family Judge and in that circumstances it was held by the Apex Court that custody in that cases where minor is living with the relations for a long time and having developed a fond relations then interim custody should not be disturbed, but in the present case facts are different.

Question regarding custody is not pending in any civil court, therefore, in the instant case, this court is to decide the custody of the minor and not interim custody.

Hon'ble Apex Court in so many cases in very clear terms has propounded that it is the welfare of child that is supreme and in several cases Hon'ble Apex Court has given the custody of the minor to the other persons in comparison to natural guardian.

Hon'ble Apex Court in the case of Lekha Vs. P. Anil Kumar, (2006) 13 SCC 555, gave the custody of minor to the mother instead of father though mother was married second time. It was found by the Hon'ble Apex Court that custody to mother is more appropriate.

Hon'ble Apex Court in so many words has held that custody of the minor is to be decided after taking into account other facts as well, such as the capacity of the father to look after the child's needs and to arrange for his upbringing, and it is also to be viewed that father decide other commitments in any position to give personal attention to the child's overall development.

The Allahabad High Court in the case of Ankur Tripathi alias Tinnu vs. Sri Radhey Shyam Pandey and others, AIR 1994 Allahabad 250 has categorically held that parents being natural guardians of child are entitled to custody.

Learned Judge in the above referred case elaborately discussed various laws propounded in this regard and held that detention of a child against the wishes of natural guardians amounted to illegal detention and it was not necessary that father should have sought remedy under the Guardians and Wards Act. It was also held that petition under Article 226 of the Constitution of India is maintainable on the ground that right of the natural guardian is indefeasible.

Learned Judge discussed the law propounded in Gohar Begum Vs. Suggi alias Nazma Begum, AIR 1960 SC 93, in which Hon'ble Supreme Court observed as under:

"The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of the child within the meaning of Section 491"

After discussing various pronouncement of different High Courts, the court finally observed as follows:

"24. In the present case the admitted fact is that the parents have claimed the custody of the minor child and they are the natural guardians. The father of the minor is the natural guardian of the minor and he has a right to keep the child with him. The opposite party No. 3 is the Mausi of the child and is not a natural guardian of the child and she has no right to keep the child in her custody."

After considering the point regarding the resources of the petitioner for giving the corpus good education and provide a comfortable living according to the status, now it is to be seen whether in view of the commitments of the father, he is in a position to give personal attendance to the child's overall developments.

It is contended by the learned counsel for the respondents that petitioner lives alone and being a lawyer he is having his own commitments and in the circumstances he cannot be in a position to look after the welfare of the child so as to give her a conducive atmosphere for child's overall development.

Dispelling the fear of the respondents' counsel, it is submitted by the learned counsel for the petitioner that other relations like brothers and sisters are used to live in association and the whole family will take care of the corpus and there is no danger of being neglected by the corpus. Although, petitioner has given details of the brothers, those who are living with him and certain documents are being provided by the respondents that brothers who are said to be living with the petitioner are not actually living with the petitioner rather they are living elsewhere.

This is not disputed that several family members like brothers in his family are living in Allahabad and in the circumstances it cannot be said that caring of corpus cannot be undertaken properly by petitioner. Even if petitioner is living alone then certainly he will make arrangements regarding that and certainly will see that caring of corpus is not overlooked. All these points are in the nature of facts and on the basis of presumption no inference can be drawn by this court.

Seeing the overall view of the petitioner as well as family members in the nature of brothers and sisters, it can very well be inferred that interest of corpus is very much safe in the custody of the petitioner.

Two things are against the respondents, firstly, that they are unmarried and certainly in future they will have their own family and in all probability interest of the corpus will be neglected thereafter. Secondly, it is not made clear that as to in whose custody in normal way corpus will be given. Custody of the single person can be more attributed for betterment of the corpus rather custody of various persons jointly.

In the result, this court is of the view that Mama and Mausi, jointly cannot be a better option in place of father who is a natural guardian as well as having sufficient source for the well being of the corpus. Corpus is taking education in a well reputed school of Allahabad. It is directed to the petitioner that corpus will remain get education in the same school.

The respondents 4 to 9 are directed to handover custody of the petitioner no. 2/corpus Kumari Tripur Sundari Joshi to petitioner no. 1 Ramesh Chand Joshi, within fifteen days from today.

The writ petition is allowed. There will be no order as to costs.

Order Date :- 20.7.2016

Ranjeet Sahu