Madhya Pradesh High Court
Pilu @ Priya vs The State Of Madhya Pradesh on 12 July, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 12th OF JULY, 2022
WRIT PETITION No. 7069 of 2022
Between:-
PILU @ PRIYA W/O LATE SHRI RAVINDRA, AGED ABOUT 28
YEARS, OCCUPATION: LABOUR VILLAGE NAVALPURA, TEHSIL
AND DISTRICT KHARGONE (MADHYA PRADESH)
.....PETITIONER
(SHRI AJAY KUMAR MIMROT, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
SUPERINTENDENT OF POLICE. KHARGONE OFFICE OF
2. SUPERINTENDENT OF POLICE KHARGONE (MADHYA
PRADESH)
SUB DIVISIONAL MAGISTRATE, KHARGONE (MADHYA
3.
PRADESH)
ANANDRAM S/O TIKARAM AVCHARE VILLAGE SALA, TEH.
4.
BHIKANGAON, KHARGONE (MADHYA PRADESH)
MAHESH S/O ANANDRAM AVCHARE VILLAGE SALA, TEH.
5.
BHIKANGAON, KHARGONE (MADHYA PRADESH)
SMT. VARSHA W/O MAHESH AVCHARE VILLAGE SALA, TEH.
6.
BHIKANGAON, KHARGONE (MADHYA PRADESH)
SUHANA D/O LATE RAVINDRA AVCHARE MINOR THR.
7. ANANDRAM AVCHARE S/O TIKARAM AVCHARE VILLAGE
SALA, TEH. BHIKANGAON, KHARGONE (MADHYA PRADESH)
KUNAL S/O LATE RAVINDRA AVCHARE MINOR THR.
8. ANANDRAM AVCHARE S/O TIKARAM AVCHARE VILLAGE
SALA, TEH. BHIKANGAON, KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHASKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR
RESPONDENT/ STATE.)
(SHRI SURENDRA KUMAR GUPTA, LEARNED COUNSEL FOR THE
RESPONDENT NOS. 4 TO 6.)
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This petition coming on for hearing on this day, JUSTICE
VIVEK RUSIA passed the following:
ORDER
The petitioner being a mother of respondent nos.7 and 8 has approached this court by way of writ of habeas corpus. According to the petitioner she is mother of respondent nos.7 and 8 who are in illegally custody of respondent nos.4 to 6. Respondent no.4 is grand father, respondent no.5 is uncle and respondent no.6 is wife of respondent no.5 undisputedly respondent no.7 and 8 are grand children of respondent no.5 therefore, it cannot be said that they are in illegal custody of the respondent no.5.
2. The petitioner before approaching this Court, approached Sub-Divisional Magistrate by way of an application filed under section 97 of Cr.P.C. seeking release of respondent no.7 and 8 from the custody of respondent no.4 to 6. Vide order dated 16.12.2021 the Sub-Divisional Magistrate has dismissed the application as respondent no.7 and 8 have shown unwillingness to go with the mother.
3. Today also, they are present before this Court and on specific query made by us, they have straight way refused to go with the mother i.e. petitioner and stated that they are willing to reside with respondent nos. 4 to 6.
4. Counsel for the petitioner submits that petitioner being a natural guardian has a right to take the custody of respondent no.7 and 8.
5. Counsel for the respondent nos.4 to 6 has pointed out that the petitioner has not claimed any relief to this effect in this petition. The petitioner is only seeking relief of release of respondent no.7 and 8 from the custody of respondent nos.4 to 6
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and further seeking directions to the State authorities to provide protection to them.
6. Such a relief cannot be granted as the respondent nos.7 and 8 are not in the illegal custody of respondent nos.4 to 6. They are grand father and uncle and they form a family. The matter was earlier referred to the mediation where also the respondent no.7 and 8 have refused to go with the mother.
7. The petitioner has not disclosed the source of income she is residing alone. Counsel for the respondent submits that she is earning by doing household work in other houses. In her absence, no one is there in the family to look after the children. The welfare of the children is paramount over and the above the statutory provisions as held by the Apex Court in case of Nil Ratan Kundu and another Vs. Abhijit Kundu reported in 2008 (9) SCC 413 in which it has held that:-
Principles governing custody of minor children " In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force. The legal position in India follows the doctrine laid down in English and American Law". The Apex Court in another case of Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others reported in 2019 (7) SCC 42 in which it has held that:-
Welfare of the minor child is the paramount consideration " The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."
In view of the above, no writ can be issued to respondent nos.4 to 6 to release respondent nos.7 and 8 for sending them in
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Bal Niketan and other shelter homes.
8. At this stage, counsel for the petitioner submits that petitioner being a mother has right to meet the children i.e. respondent nos.7 and 8. Counsel further submitted that husband of the petitioner committed suicide. Although we are not going into the controversy under what circumstances he committed the suicide.
10. Since the petitioner is mother and she is living separately without children since last one year therefore, we permit her to meet her children i.e. respondent no.7 and 8 by visiting at the nearby aganwadi centre in the presence of aganwadi worker/assistant on every 3rd Sunday of the month from 10:00 a.m. to 12:00 p.m. initially for two hours and after six months for four hours.
Accordingly, the writ petition is disposed of.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT
OF MADHYA PRADESH BENCH INDORE,
KAMALA
postalCode=452001, st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e 3ed6cba241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5 D61A1EE901C09EF29, SANAN serialNumber=7F0BEE2D78BD57DA058F32 47441C87E7E0817FB61F5E2ABCAEE63CAA A7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.07.13 17:41:52 +05'30'