Court No. - 50
Case :- HABEAS CORPUS WRIT PETITION No. - 3063 of 2018 Petitioner :- Master Mohit (Minor) And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Abhishek Gupta Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
Sri Manoj Kumar Srivastava, Advocate filed counter affidavit on behalf of respondent nos.4 & 5, which is taken on record. He submits that Vakalatnama on behalf of respondent nos.4 & 5 has been filed by him in the registry.
Learned counsel for the petitioners submits that he does not want to file any rejoinder affidavit to the counter affidavit filed by respondent nos.4 & 5.
Heard Sri Abhishek Gupta, learned counsel for the petitioners, Sri Manoj Kumar Srivastava, learned counsel for the respondent nos.4 & 5, learned A.G.A. for the State and perused the record.
Learned counsel for the petitioners submits that petitioner no.5 is mother of petitioner nos.1 to 4, who are corpus in the case and are in illegal detention of respondent nos.4 & 5; that father of corpus was murdered in the year 2013; that he was missing since 8:00 a.m. on 10.4.2013 regarding which missing report was given by the petitioner no.5 at P.S. Chandose, District Aligarh but later on F.I.R. was lodged falsely implicating the petitioner no.5 and three others for committing murder of the husband of petitioner no.5 with the allegation that petitioner no.5 was having illicit relations with co-accused Indrapal and she committed murder of her husband in connivance with Indrapal, Hira and Bhola; that for the murder of her husband the petitioner no.5 was tried in Sessions Trial No.643 of 2013 and was convicted by the Additional Sessions Judge, Aligarh for the offences under Sections 302/34 and 201/34 I.P.C. and sentenced accordingly with life imprisonment etc.; that against the judgment of conviction the petitioner no.5 has preferred Criminal Appeal No.2905 of 2017 before this Court and has been released on bail vide order dated 7.12.2017 of the appellate court; that the petitioner nos.1 to 4 are in illegal custody of respondent nos.4 & 5, who happens to be their real Bua and Phupha; that grand-parents of petitioner nos.1 to 4 i.e. corpus are not alive; that since the respondent nos.4 & 5 have their own children, they are not taking due care of the education, fooding and welfare of the corpus (children) and they are being treated as bounded labours; that being mother the petitioner no.5 is natural guardian of the corpus and is entitled to the custody.
Per contra, learned counsel for the respondent nos.4 & 5 submits that petitioner no.5 is a life convict and though she was on bail during trial but since murder of her husband committed by her, the four children of petitioner no.5 and late Man Singh are living with their Bua and Phupha, who are taking all care of their fooding, nourishment, education and welfare; that all the children i.e. the petitioner nos.1 to 4 are studying in 7th, 6th, 5th and 3rd standards respectively copies of their progress reports for the year 2017-18 have been filed as C.A.-4; that during last 5 years the petitioner no.5 did not take any care of her minor children and did not seek their custody by any proceedings; that it is absolutely wrong to say that the corpus are being treated as bounded labour or the respondent nos.4 & 5 are giving them different treatment in comparison to their own children; that the petitioner no.5 was convicted vide judgment and order dated 19.5.2017, copy at Annexure C.A.-1; that in the sessions trial petitioner no.1, corpus Mohit deposed as P.W.-4, on whose statement the petitioner no.5 was convicted; that the respondent nos.4 & 5 taking all care of the corpus and have moved Petition No.89 of 2013 under Guardians and Wards Act before the District Judge, Aligarh under Section 7 read with Section 15 of Guardians and Wards Act seeking declaration of the guardianship of minor children Mohit, Ganesh, Sachin and Babli, copy at C.A.-3; that in above petition under Guardians and Wards Act the opposite party Raj Kumari, who is petitioner no.5 in this petition, is avoiding service of notices because of which the case is still pending; that the corpus, petitioner nos.1 to 4 are not in illegal or unlawful custody of the respondent nos.4 & 5 and so the petition for habeas corpus is legally not maintainable; that in any case the petitioner no.5 if wants may seek remedy seeking custody of the children under the Guardians and Wards Act as efficacious remedy is available and so also the writ petition for habeas corpus is not maintainable.
In reply to the argument advanced by learned counsel for the respondent nos.4 & 5, learned counsel for the petitioner pointed out that petitioner no.5 had moved an application to S.H.O., P.S. Chandose, Aligarh, copy of which is at Annexure-1 and has mentioned about it in para 9 of the petition; that petitioner no.5 has no notice of Petition No.89 of 2013 (Shanti Devi Vs. Raj Kumari) filed by respondent nos.4 & 5 under Sections 7 & 15 of Guardians and Wards Act.
Upon hearing learned counsel for the parties and perusal of record, I find that Annexure-1 to the petition is copy of an application addressed to S.H.O., P.S. Chandose, District Aligarh by the petitioner no.5 but this application neither bears any seal of receipt at P.S. Chandose nor bears any date nor bears thumb impressions of the petitioner no.5. Moreover in above application it has been stated that she was falsely implicated for the murder of her husband and before she was released on bail in the meantime her children were kidnapped and there is apprehension of life of her children from Pooran Singh, Rakesh, Bani Singh etc., who have taken possession over her agricultural land and the children and are confined in the house of Shanti Devi and Kartar Singh and may be given in her possession. In above application no date, time or period of above incident of kidnapping has been mentioned and so A-1 is not meaningless in the petition.
As far as the fact that petitioner no.5 is a life convict, I find that undisputedly she is mother and natural guardian of the minor children and since the matter is subjudice in Criminal Appeal No.2905 of 2017, the fact that she is a life convict does not bar her from maintaining the petition. However, considering the fact that the petitioner nos.1 to 4 are living with their real Bua and Phupha since last about 5 years, since the times of murder of their father in April, 2013 and the respondent nos.4 & 5 appears to be providing education to them and have also filed petition seeking declaration of their guardianship, there is no material on record to hold that the corpus are under illegal detention of respondent nos.4 & 5 and so the petition for habeas corpus is not maintainable.
In view of the discussions made above, I find that petition for habeas corpus is devoid of merits and is liable to be dismissed.
The petition for habeas corpus is dismissed, accordingly.
It is made clear that dismissal of petition for habeas corpus, will not adversely affect the petitioner no.5 if she opts to seek appropriate remedy under Guardians and Wards Act before appropriate forum.
Order Date :- 31.5.2018 Kpy