JUDGMENT K.N. Ojha, J.
1. This petition under Article 226 of the Constitution of India has been filed for issue of direction in the nature of Mandamus directing the S.S.P., Hathras to recover the petitioner No. 2 Km. Posya daughter of petitioner No. 1 Yogesh Sharma from illegal custody of respondents and for issue of suitable orders.
2. Heard Sri Rajesh Pathik, learned counsel for the petitioners and Sri Shashi Nandan, learned counsel for the respondents and have gone through the record.
3. Petitioner No. 1 Yogesh Sharma is father of Km. Posya petitioner No. 2 aged about 9 years. Yogesh Sharma is lecturer in Chemical Engineering in P.M.V. Polytechnic College, Mathura. Smt. Anita mother of Km. Posya is no more alive. Respondent No. 1 Suresh Chandra Kausik is father of Anita who was mother of Km. Posya, Respondent No. 2 Sudha Kausik is wife of respondent No. 1 Suresh Chandra Kausik. Respondent No. 3 Atul Kausik and respondent No. 4 Akhilesh Kausik are sons of Suresh Chandra Kausik grand maternal uncle of Kin. Posya. Petitioner No. 1 Yogesh Sharma lives in Type-4 Quarter, P.M.V. Polytechnic College, Mathura. Respondents live in village Navipur Kala Police Station Kotwali district Hathras. Km. Posya also lives with respondent No. 1 Suresh Chandra Kausik. Respondent No. 3 Atul Kausik, maternal Uncle of Km. Posya is also Doctor.
4. According to petitioner Yogesh Sharma, Km. Posya was born in the year, 1994. She was with the petitioner on 6.3.2001
5. At about 7.00 P.M. he had gone to market when he came back to his house, he found that his wife Smt Anita and Km. Posya were not at the residence. Ornament and Rs. 15,000/- was also not in the house. He lodged F.I.R. at Krishna Nagar police outpost that his wife and daughter were missing. Later on he came to know that his wife and daughter had gone to the residence of the respondents. Smt. Anita suffered from Cancer and she died on 27.5.2001, but its information was not given to the petitioner. He made many efforts to bring Km. Posya to his house as she is the only issue, but she was not sent to his house. Later on Yogesh Sharma married another girl in May, 2002. On 23.9.2002 respondent No. 1 Suresh Chandra Kausik, respondent No. 4 Akhilesh Kausik and two other unknown persons went to the residence of the petitioner and tried to kill second wife of Yogesh Sharma and caused knife injury to one Kanhaiya Sharma but second wife of Yogesh Sharma was saved. He tried to lodge F.I.R. against the respondents but it was not written. He moved application under Section 156(3) Cr.P.C. for directing the police to register the case against respondents and when report was called by the court, the police instead of submitting clear report tried to reconcile the dispute. It is further submitted that Km. Posya is not being properly educated, therefore, she be given in his custody. Civil Suit No. 6 of 2001 is also filed under Hindu Minority and Guardianship Act in the court of District Judge, Hathras that Km. Posya be given in the guardianship of Yogesh Sharma.
6. The case of the respondents is that instant Habeas Corpus writ petition is not maintainable because Yogesh Sharma has filed suit No. 6 of 2002 also regarding custody and guardianship of petitioner No. 2 Km. Posya aged about 9 years in the court of District Judge, Hathras. Km. Posya is living with respondents Nos. 1 and 2 since 6.3.2001. She her mother Smt. Anita were turned out by the petitioner No. 1 Yogesh Sharma from his house. Km. Posya was born, but Smt. Anita being turned out, she went to the residence of respondent No. 1. Smt. Anita suffered from Cancer, therefore, respondent had got Smt. Anita admitted in A.I.I.M.S. Delhi. Her medical treatment went on and she lived at NOIDA with respondent No. 3 Atul Kausik. During this period Yogesh Sharma did never go to take Smt. Anita or to help in medical treatment. Yogesh Sharma even refused to participate in the funeral and last rituals which were performed by the respondents. All the expenses of medical treatment at Aligarh Hospital and All India Institute of Medical Sciences, Delhi were borne by the respondents. It is submitted by the learned counsel for the respondents that suit is already pending in Civil Court for guardianship, the writ petition is not maintainable.
7. 1981 A.W.C.457 Vinayak Goyal v. Prem Prakash Goyal has been cited in which it has been held by this Court that "the law is well settled that the writ of habeas corpus would be maintainable for the custody of a child despite the alternative remedy of filing an application under the Guardians and Wards Act.
8. Petitioner has also cited A.I.R. 1975 Orissa, 180 Sobha Dei v. Bhima in which it has been held that father being the natural guardian of the minor, the mother is incompetent to represent the minor as next friend against him.
9. A.I.R. 1980 Rajasthan 64 Dr. (Smt) Snehlata Mathur v. Mahendra Narain has also been cited by the petitioner in which it has been held by High Court of Rajasthan that "it is well settled that the right of a father as a natural guardian to the custody of his minor child is not an indefeasible right in law; it is circumscribed by the consideration of the benefit and welfare of the minor. If the contrast is between the father and some person other than the mother, the position of father from the point of view of the welfare of minor, is clearly preferential, but it will be open to the person challenging right of father to satisfy the court that the welfare of the minor lies in keeping him away from custody of minor. The burden of proof on such person would be very heavy, for the court will require very strong reasons to interfere with father's right to custody. In the circumstances of the case, the father as natural guardian must be given a chance, in the absence of the mother, to keep the child in his parental custody".
10. It is not denied that the application of the petitioner is pending in Civil Court under Guardianship and wards Act, in view of law cited above, inspite of such case pending in the Civil Court, Habeas Corpus writ petition is maintainable in this court, but it is to be seen as to whether this is a fit case in which direction be made to the respondents to handover Km. Posya to petitioner No. 1 Yogesh Sharma, her father.
11. From the affidavits and papers filed by both the parties certain facts are clear in this case that mother of Km. Posya died, she was at the residence of respondents where her maternal uncles, grand maternal uncle and grand maternal aunts live. Relations between Yogesh Sharma and respondents were strained. To such an extent that Yogesh Sharma had moved application under Section 156(3) Cr.P.C. against the respondents, Smt. Anita along with Km. Posya was living at the residence of her father even though her medical treatment was going on and later on she expired. It is also not denied that after the death of Smt. Anita, Yogesh Sharma married with some other girl. There is apprehension in the mind of the respondents that proper affection was not being given by Yogesh Sharma when mother of Km. Posya was alive, such position will continue because Yogesh Sharma has married another girl. In this case even though Yogesh Sharma is legal guardian of Km. Posya, but respondents are also not stranger. She has been living with respondents Nos. 1 and 2 since before the death of her mother Anita and now it is not denied that petitioner No. 1 Yogesh Sharma has got another wife. In these circumstances it would be necessary that evidence of the parties be recorded and welfare of Km. Posya be considered after making deep scrutiny of the evidence as where her welfare lies and this fact may be appreciated when parties are allowed full opportunity to examine and cross examine the witnesses which may be done in the civil suit which is already pending between the parties.
12. Therefore, even though this Habeas Corpus writ petition is maintainable in this court, but it is not a fit case in which direction may be made to the respondents to handover Km. Posya to the custody of Yogesh Sharma, petitioner No. 1.