Court No. - 83
Case :- HABEAS CORPUS WRIT PETITION No. - 3734 of 2018 Petitioner :- Smt. Sweta Sahai @ Seetal And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ved Prakash Mishra Counsel for Respondent :- G.A.,P.H. Vashishtha
Hon'ble Rajeev Misra,J.
1. Rejoinder affidavit filed by Mr. Ved Prakash Mishra, learned counsel for petitioner today in Court is taken on record.
2. Heard Mr. Ved Prakash Mishra, learned counsel for petitioners, learned A.G.A. representing respondents-1, 2 and 3 and Mr. P. H. Vashishtha, learned counsel representing respondent-4.
3. This Habeas Corpus Writ Petition has been filed for a direction to respondents to produce petitioner-2, Vinayak Sahay (corpus) before this Court and subsequently, release the corpus in favour of petitioner-1 Smt. Sweta Sahai @ Seetal.
4. Present writ petition came up for admission on 09.10.2018 and this Court passed following order:-
" Heard learned counsel for the petitioners and learned A.G.A.
Learned counsel for the petitioners submitted that respondent no.4 is not permitting the petitioner no.1 i.e. mother to meet her son i.e. petitioner no.2.
Issue notice to opposite party no.4 for filing counter affidavit, if any, within a period of four weeks and producing the petitioner no.2, corpus (Vinayak Sahay) before this Court on 15.11.2018.
Steps be taken within three days.
List on 15.11.2018. On the next date, petitioner no.1 shall also remain present before the Court."
5. Pursuant to order dated 09.10.2018, petitioner-2, Vinayak Sahay (corpus) was produced before this Court and his statement was recorded. Same is evident from order dated 15.11.2018, which reads as under:
" Sri P.H. Vashishtha, Advocate filed Vakalatnama on behalf of respondent no.4 Saurabh Sahai and also filed counter affidavit which are taken on record.
Respondent no.4 produced the corpus Vinayak Sahai before the Court. The corpus was duly identified by learned counsel for the respondent no.4 and upon being enquired he stated that he is the son of Sri Saurabh Sahai and Smt. Sweta Sahai and studying in Class IIIrd in Brij Bhushan Lal Public School, Bareilly and his date of birth is 23.8.2009. He stated that he is living with his father since last one year.
Learned counsel for the petitioner submits that he has to file rejoinder affidavit.
Let rejoinder affidavit be filed in three weeks. List thereafter.
The personal appearance of corpus Vinayak Sahai is exempted till further orders."
6. Matter was considered on merits by this Court on 5.11.2018. However on account of illness slip sent by learned counsel representing respondent-4, matter could not be adjudicated finally. For ready reference order dated 05.11.2019 is reproduced herein-under:
" Case has been called out. Sri Ved Prakash Mishra, counsel for the petitioners is present. No one appears for the opposite party no. 4.
It appears from the order dated 15.11.2018 that respondent no. 4 had produced the corpus Vinayak Sahai aged about 8 years and on being enquired, he has stated that he is the son of Sri Saurabh Sahai and Smt. Sweta Sahai and studying in class IIIrd in Bareilly and his date of birth is 23.8.2009. It is further noted that he has categorically stated that he is living with his father for the past one year.
Learned counsel was still granted three weeks time to file rejoinder affidavit but no rejoinder affidavit has been filed till date. From the facts it appears that child is under the custody of his biological father and natural guardian and thus at this stage it cannot be said that he is under any illegal detention of his father. However, learned counsel for the petitioner states that the petitioner no. 1 being mother may be allowed some visitation rights. However, on account of illness of counsel for respondent no. 4 I do not propose to pass any ex-parte order.
List again on 20.11.2019."
7. From perusal of above order dated 05.11.2019passed by this Court, it is explicitly clear that corpus is living with his natural father. As such, it can not be said that corpus is in illegal custody of respondent-4.
8. The issue as to whether the child, who is approximately aged about 10 years on date, should be allowed to be in the custody of his natural mother or father is a contentious issue and cannot be decided in isolation as paramount interest of the child shall have to be decided. The said issue can be decided on appraisal or appreciation of evidence in the light of consent of the child. Such an exercise is not permissible in exercise of jurisdiction under Article 226 of Constitution of India. However, since petitioner-1, Smt. Sweta Sahai @ Seetal is natural mother of minor, in the interest of justice, it is provided that visiting rights be extended in favour of petitioner-1, the natural mother of corpus to meet the minor.
9. In view of above, this habeas corpus writ petition is finally disposed of with a direction that petitioner-1, Smt. Sweta Shai @ Seetal will have visiting rights to meet the corpus Vinayak Sahai i.e. her son. No obstruction shall be caused by respondent-4 in the visiting rights of petitioner-1. Petitioner-1 shall be free to visit the corpus on first Sunday of every month in between 10.00 AM to 1.00 PM and shall be at liberty to spend maximum three hours time with her son.
Order Date :- 22.9.2021 YK