JUDGMENT K.N. Sinha, J.
1. Heard Sri R.B. Singhal, learned counsel for the Petitioners, Smt. Sadhna Upadhyay learned counsel for the respondents No. 1 and 2 and the learned A.G.A. appearing for respondents No. 3 to 5.
2. The habeas corpus petition has been filed under Article 226 of the Constitution of India for issuing a writ to produce petitioner No. 2 and set him at liberty and entrust the custody of petitioner No. 2 to petitioner No. 1. The grounds set forth for the said prayer is that petitioner No. 1 Bal Kishan Rastogi is the father of Karan Rastogi petitioner No. 2, who is in illegal confinement of respondents No. 1 and 2.
3. Petitioner No. 1 is the resident of Kayamganj District Farrukhabad and carrying on the business of tobacco. He is the father and natural guardian of petitioner No. 2, who is aged about 7 years. The wife of the petitioner No. 1 was not keeping good health and as such he had permitted his sister Smt. Kamlesh Rastogi, the respondent No. 2, to look after the child. Dr. Reena Rastogi (respondent No. 1) is the daughter of respondent No. 2 and had been looking after the petitioner No. 2 since infancy. Smt. Savita Rastogi. wife of the petitioner No. 1 has now recovered from ailment and given birth to a female child and is in position to look after and take care of her children. The petitioner No. 1 filed an application before the Senior Superintendent of Police, Meerut for the custody of petitioner No. 2, whereupon the Senior Superintendent of Police. Meerut directed S.H.O. Kotwali to set at liberty the petitioner No. 2. The said copy of the application is annexure No. 1. The petitioner No. 1 has also moved an application to City Magistrate, Meerut for issue of search warrant, whereupon S.H.O. Kotwali submitted a report. The City Magistrate, however, refused to issue search warrant and rejected the application. Dr Reena Rastogi (respondent No. 2) having no employment and no source of her livelihood, is dependent on her parents, hence she cannot maintain and take care of petitioner No. 2. Therefore, the petitioner moved this writ petition with the above prayer. He has also annexed the copy of the application moved to Senior Superintendent of Police. Meerut and the City Magistrate, Meerut.
4. The petitioner filed supplementary affidavit annexing certified copy of the order dated 22.5.2004 of the Civil Judge (Senior Division), Meerut in case No. 91 of 2004 - Dr. Reena Rastogi v. Bal Kishan and Ors., whereupon the order dated 20.2.2004 was recalled.
5. This Court, by order dated 12.3.2004, directed the production of the detenu. The respondents filed an application for recall of the order dated 12.3.2004 and also filed the counter affidavit on the ground that the petitioner is the real brother of the respondent No. 2 Smt. Kamlesh Rastogi. Dr. Beena Rastogi is a divorced lady and daughter of Smt. Kamlesh Rastogi. The petitioner No. 2 Master Karan Rastogi was born on 12.10.1996 during the wedlock of petitioner No. 1 Bal Kishan Rastogi and Smt. Savita Rastogi. Smt. Savita Rastogi was suffering from mental illness and was not in a position to take care of child. On 20.12.1996, the petitioner No. 1 and his wife gave Master Karan Rastogi in adoption to respondent No. 1 when Master Karan Rastogi was infant only of two months. Ever since 20.12.1996 Master Karan Rastogi was under the nursing and care of respondent No. 1 and was admitted in Dewan Public School. The document of the School is annexure CA-1. Smt. Savita Rastogi was admittedly suffering from old and chronic mental disorder which is detailed i the application dated 9.2.2004 (Annexure - 1 to the writ petition). In the application dated 9.2.2004, it has been mentioned that her condition may further deteriorate. In the original suit No. 91/2004 the respondent No. 1 has been appointed as Guardian. The copy of the plaint and order are annexure 2 and 3 of the counter affidavit. In whole of the application, there is no mention about the welfare of the minor child. The child is in adopted motherhood of Dr. Reena Rastogi (respondent No. 1) since 20.12.1996, hence this is no a case of illegal detention. The child was only two months old when he was given in adoption in the presence of neighbours, relatives and others as Smt. Savita Rastogi could not look after the child due to her mental sickness. Smt. Savita Rastogi and Bal Kishan Rastogi are no doubt parents of Master Karan Rastogi but they have no authority to claim natural guardianship under Section 6 of the Hindu Minority And Guardianship Act when he has already been given the adoption. The petitioner No. 1 and his wife have themselves given petitioner No. 2 in the adoption but the petitioner No. 1 has cleverly avoided mentioning the date of giving adoption. Smt. Savita Rastogi, wife of petitioner No. 1 has not recovered from her mental ailment. The respondent No. 1 is an income tax assessee with a gross income of more than Rs. 1.5 lacs. The respondent No. 2 is also an income tax assessee with a gross income of about Rs. 2.5 lacs. The copy of the income tax form and academic certificates of Dr. Reena Rastogi has been filed as Annexure CA-8 to CA-11 to the counter affidavit. The allegation of alleged illegal confinement and detention is a pure imagination of petitioner No. 1 and writ petition is misconceived. The paramount consideration is the welfare of the minor and not the legal rights of the parties.
6. The respondents have also filed supplementary counter affidavit alleging therein that their original suit No. 91/2004 is pending before the lower court. The affidavit of Pt. Naveen Samwel, about the adoption and few photographs and documents of the School has been filed along with the supplementary counter affidavit.
7. The rejoinder affidavit was filed by the petitioner on the ground that the allegations set forth in the counter affidavit are misleading. No adoption was made on 20.12.1996 and no deed was written or registered. In accordance with the provisions of Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 Smt. Savita Rastogi has not given consent of the adoption. Now Smt. Savita Rastogi is perfectly fit and a medical certificate has been filed.
8. I have heard the learned counsel for the parties and perused the affidavit, supplementary affidavit, counter affidavit, supplementary counter affidavit and the rejoinder affidavit and all the documents filed in the record of this case. What emerges from the allegations of the paragraphs of the writ petitioner, is that petitioner No. 2 is the son of petitioner No. 1 and his wife Smt. Savita. It is clear in paragraph 4 that petitioner No. 1, on account of ill-health of his wife has initially allowed the boy to be taken to Meerut by his sister Smt. Kamlesh Rastogi respondent No. 2 and Dr. Reena Rastogi, respondent No. 1, daughter of respondent No. 2 who has been looking after and taking care of the infant Karan Rastogi (petitioner No. 2). The petitioner has not mentioned any date for such handing over. Moreover, the handing over of the boy was on account of free will of the petitioner and his wife. It appears that the dispute arose since 9.2.2004 when the petitioner No. 1 moved an application before the Senior Superintendent of Police Meerut and for issue of search warrant before the City Magistrate, Meerut. It has also been nowhere mentioned that when the petitioner No. 1 approached the respondents for return of petitioner No. 2 or when they refused to deliver the boy. The petitioner in paragraphs 6, 7, 8, 9 and 10 of the petition, has only mentioned that he moved Senior Superintendent of Police, Meerut and City Magistrate, Meerut for custody of the boy who directed the S.H.O. to look into the matter. The report of the S.H.O. (Annexure 3) shows that he reported that according to Dr. Reena Rastogi, petitioner No. 2 Master Karan Rastogi was given in adoption. The City Magistrate rejected the application under Section 97 Cr.P.C. for summoning of the respondents. Thus the petition is almost silent on all the material points.
9. The learned counsel for the petitioner has relied upon Union of India v. Paul Manickam and Anr., , especially paragraphs 15 and 19 of the judgment.
10. I have gone through the above judgment, which is in respect of a matter of preventive detention of the respondent of that petition under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Paragraph 15 lays down that:--
"Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of legal detention which utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of rights which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right."
11. The perusal of the above paragraph shows that in a writ petition, the applicant must show a prima facie case of unlawful detention. In the present case, as stated above, no date of detention is mentioned nor there is anything in the writ petition showing that on which date the petitioner approached for return of child and was refused by the respondents. As against it in paragraph No. 4 has been pleaded. So far as paragraph 19 of the judgment in the case of Union of India v. Paul Manickam (Supra) is concerned, it does not apply on such a writ petition.
12. The next authority cited by the learned counsel for the respondent is Poonam Datta v. Krishanlal Datta and Ors., in which the court on the facts of that case issued direction that child will live with his mother, however, permitted child's grandfather to take child to his residence during every weekend and further directed parties to do nothing which would be adverse to interest of child. The said direction was issued on the facts of that case.
13. As I have already discussed above that there is nothing in paragraphs of the writ petition about the date of illegal detention still keeping in view this petition, I have to see the welfare of the minor which is of paramount consideration.
14. The case set up by respondents is that of adoption. The learned counsel for the petitioner has taken me through various provisions of Hindu Minority and Guardianship Act and submitted that the adoption must be with the consent of father and mother giving in the adoption. So far as the question of giving in adoption is concerned, it is not within the purview of the writ jurisdiction but it can be decided only by the competent court. Some civil suit is also going on between the parties being suit No. 91/2004. The court by order dated 20.2.2004 appointed Dr. Reena Rastogi the guardian, though by the supplementary affidavit, the petitioner has filed the copy of the order dated 22.5.2004 whereby the court has recalled the order dated 20.2.2004. However, the matter is still pending before the Civil Court. Moreover, the question whether there was an adoption or not, whether the adoption was valid or not have to be considered by the concerned court. In Rajeev Bhatia etc. v. Government of NCT of Delhi, . Hon'ble the Apex Court has held that High Court was not justified in examining the legality of the deed of adoption and coaing to the conclusion one way or the other with regard to the custody of the child. On the facts of the said case, a habeas corpus petition was earlier filed before the Rajasthan High Court and it being dismissed, the petitioner filed another writ petition before the Delhi High Court, wherein the plea of adoption was taken. The Delhi High Court considered the validity of adoption deed and held that the deed does not inspire any confidence, therefore, issued a direction for custody of child with the mother till appropriate decision. This direction of the Delhi High Court was not held to be proper by the Apex Court in the said judgment. Thus, so far as the theory of adoption is concerned, it may be adjudicated upon only by the competent court.
15. At present, the boy is with the respondents. No doubt it is settled principle that in such cases the paramount consideration is the welfare of the child. Admittedly the child was given to respondents during his infancy. The respondents have taken the stand that it was given at the age of two months and admittedly he was aged about 7 years when the writ petition was filed in February 2004. The papers filed by the respondents show that the boy was admitted in Nursery Class, then after passing out to Lower K.G. Class, then to Upper K.G. Class, then to Ist standard. He has also been awarded the certificate of merit. The counter affidavit of the respondents shows that both the respondents are income tax assessee and the PAN Nos. have also been given alongwith the copy of the income tax form as Annexures CA-8 and CA-9. These forms show that respondents are income tax payee.
16. The learned counsel for the petitioner has submitted that admittedly the petitioner No. 2 is the son of the petitioner No. 1 and his wife. He has a legal right to have the custody of the child. In Smt. Kahkashan Bano v. A.M. Ansari, 1990 (1) A.W.C. 257, this Court relying upon Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor , held that in matters concerning the custody of minor children the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.
17. In Tejinder Kaur v. Inder Pal Singh, 1996 (3) AWC page 1633 this Court followed the law laid down in Mrs. Elizabeth Dinshaw v. Arvind. M. Dinshaw and Anr. AIR 1987 SC page 4, in which it was held that "whenever a question arises before the Court pertaining to the custody of a minor children, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor."
18. Thus, in view of above pronouncements, the welfare of the child is paramount. The record shows, as pointed out above, that the petitioner No. 2 is with the respondent since infancy and now running in 8th year of the age. He is continuously with them and now studying in first standard after passing out Nursery, Lower K.G. and Upper K.G. They have sufficient means to maintain him. The petitioner is silent in respect of income of the petitioners or the source of income though there is bare mention in paragraph 2 of the writ petition regarding his business with no evidence.
19. Thus, I have given anxious consideration to the matter very carefully and in view of the findings recorded above, on various points, I find that this writ petition is devoid of any force and it is hereby dismissed.