Allahabad High Court
Bhavika (Minor) And Another vs State Of U P And 5 Others on 9 August, 2023
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160426
Court No. - 79
Case :- HABEAS CORPUS WRIT PETITION No. - 31 of 2023
Petitioner :- Bhavika (Minor) And Another
Respondent :- State Of U P And 5 Others
Counsel for Petitioner :- Deo Prakash Singh,Bipin Kumar Rao
Counsel for Respondent :- G.A.,Dinesh Kumar Singh
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Bipin Kumar Rao, learned counsel for the petitioners, learned A.G.A. for the State, Sri Dinesh Kumar Singh, learned counsel appearing on behalf of respondent nos. 5 & 6 and perused the record.
This habeas corpus writ petition has been filed on behalf of corpus petitioner no. 1 namely Bhavika through her father petitioner no. 2 namely Neetesh @ Naveen with the allegation that the corpus is illegally detained by respondent nos. 5 and 6 who are maternal uncle and maternal aunt of corpus.
In compliance of order of this Court dated 28.01.2023, the corpus namely Bhavika has been produced by Sub Inspector Arjun Pratap Singh and Constable Kiran through respondent nos. 5 and 6.
It is submitted by learned counsel for the petitioners that petitioner no. 2 namely Neetesh @ Naveen is biological father and natural guardian of corpus but respondent nos. 5 and 6 have illegally detained the corpus who are maternal uncle and maternal aunt of corpus. It is further submitted that the mother of corpus namely Chhavi @ Rajni died on 14.08.2022 and since then the corpus is under illegal detention of respondent nos. 5 and 6. The corpus is aged about 2 years.
On the other hand learned counsel appearing on behalf of respondent nos. 5 and 6 has submitted that mother of corpus namely Chhavi was being tortured by petitioner no. 2, who is father of corpus. The mother of corpus died on 14.08.2022 and since then corpus is residing with the answering respondents. A first information report was also lodged against petitioner no. 2 and other family members on 06.09.2022 by respondent no. 5, under Sections 323, 406, 498A, 304B I.P.C.
Learned counsel for answering respondents has placed reliance on the judgment of Hon'ble Apex Court in the case of Nil Ratan Kundu & Anr. vs. Abhijit Kundu, reported in (2008) 9 SCC 413. In this case the custody of corpus was given to maternal grand father and grand mother, as the first information report was lodged against the father and grand mother of corpus with the allegation for committing murder of mother of corpus and after due investigation, charge sheet was submitted and criminal trial was pending against father and grand mother of corpus. The facts of the present case are entirely different. In the present case mother of corpus died due to Brain Tuberculosis and Investigating Officer after due investigation has not found any evidence and materials against the petitioner no. 2 and his family members and had submitted final report.
Considering the rival submissions of learned counsel for the parties and on perusal of record, it appears that petitioner no. 2 is biological father of corpus and is working as physical teacher in Senior Secondary School, getting handsome salary and is able to take proper care of his daughter and as such is entitled for custody of corpus.
In view of above, the habeas corpus petition is allowed and respondent nos. 5 and 6 are directed to hand over the custody of corpus namely Bhavika to the petitioner no. 2 namely Neetesh @ Naveen, who is father and natural guardian of corpus in the peaceful atmosphere on 24.08.2023.
However, it is open for the respondent nos. 5 and 6 to meet the corpus once in a month with the prior information to petitioner no. 2.
Order Date :- 9.8.2023
sailesh
