Smt. Kamla Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 2958 MP

               HIGH COURT OF MADHYA PRADESH
                   Writ Petition No.17615/2020
Jabalpur, dated 5.7.2021
         Heard through Video Conferencing
         Mr. K. K. Pandey, learned counsel for the petitioner.
         Mr. Ritwik Parashar, learned Panel Lawyer for respondent

nos.1 to 3-State.

Mr. K. K. Pandey, learned proxy counsel, appears and says that Mr. A. P. Singh, who is the counsel for the petitioner in this case, is unable to appear today before this court as his father is unwell and he has to look after him.

Per contra, Mr. Amit Singh, learned counsel for respondent nos.4 and 5, has submitted that the learned counsel for the petitioner is deliberately not appearing before this court on account of the order passed by it on 29.1.2021 and on account of the observations made by this bench in that order.

This is a case where the petitioner is the maternal grandmother of corpus Arush. The corpus is presently in the custody of respondent no.4 Mr. Suneet Singh and his mother Mrs. Shiv Kumari Singh. Respondent no.4 is the father of the corpus and thereby his natural guardian.

On 29.1.2021, learned counsel for the petitioner had argued before this court that the mother of the corpus late Mrs. Roopali Singh had prepared a Will that her son Arush be kept in the custody of the petitioner. And, therefore, it was alleged by the petitioner that the father of the corpus has taken the custody of the petitioner's grandson and is not permitting the petitioner to look after the child. This court in that order had referred to a judgment of the Supreme Court placed before it by the learned counsel for respondent no.4 which prima facie appear to be similar in nature in which the Supreme Court had upheld the order passed by the High Court handing over the custody of the minor child to the father (Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 SCC 42). Referring to the judgment of the Supreme Court, in the order dated 29.1.2021 of this court, it was observed that the Supreme Court had held that only in exceptional cases the right of the parties to the custody of the minor will be determined in exercise of extra-ordinary jurisdiction for a petition for habeas corpus.

The case was next listed on 2.2.2021 before a co- ordinate bench headed by another learned Judge on which date the learned counsel for the petitioner Mr. A. P. Singh appeared before this court.

Thereafter, on 10.2.2021, the case was yet again listed before another learned Judge when again the learned counsel for the petitioner, Mr. A. P. Singh, appeared before that court. Likewise, on 17.3.2021 also Mr. A. P. Singh, learned counsel for the petitioner, appeared when the matter was listed before another learned Judge.

On 8.4.2021, this case was once again listed before this court and Mr. A. P. Singh, learned counsel for the petitioner, did not appear and instead a proxy counsel Mr. Rajesh Kumar Pandey appeared. However, as on account of the previous orders passed by this court, the corpus was produced physically before this court on that date. This court observed in the order dated 8.4.2021 that though the corpus is only three years old, it appears to be reasonably intelligent to answer the questions relating to his identity and address and from the body language of the corpus it appears that the corpus is extremely attached to the father. When this court asked the corpus as to whom he wants to live with, he answered that he wants to live with "Amma" and pointed to his paternal grandmother who had accompanied the corpus to this court.

In the last paragraph, this court has observed that prima facie a strong case appears to have been made out that the custody of the corpus will remain with the father as of now and also stated that the opinion is not final and subject to final arguments after hearing the learned counsel for the petitioner.

Thereafter, on 7.6.2021 the case was listed before another learned Judge and Mr. A. P. Singh, learned counsel for the petitioner appeared. However, the arguments did not take place.

Then, on 21.6.2021 the case was listed before this bench and learned counsel for the petitioner appeared through video conferencing but sought time to argue the case on account of some personal difficulty. This court accommodated Mr. A. P. Singh and listed the case for today.

The apprehension of the learned counsel for respondent nos.4 and 5 may be probable. However, this court feels that in view of the reason given for seeking adjournment, which is the illness of the father of learned counsel for the petitioner, there is no reason to disbelieve the proxy counsel.

Under the circumstances, list this case for final disposal at the motion hearing stage on 27.9.2021.

(Atul Sreedharan) Judge ps

PRASHANT Digitally signed by PRASHANT SHRIVASTAVA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,

SHRIVASTA ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=ece48d19937645a6267b9b5ec6a49fcd15 bfc04d16d24c3fe6b477bde7632d74, cn=PRASHANT SHRIVASTAVA

VA Date: 2021.07.06 10:45:22 +05'30'