The welfare of the child is the paramount consideration in deciding custody matters, and the legal rights of the mother are subject to the provisions of the Guardians and Wards Act, 1890.

JUDGMENT

Sant Parkash, J. - This is a petition under Article 226/227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus with a roving writ to search/release of Amreen Kaur, aged 5 years (minor daughter of petitioner) from the custody of respondent Nos.4 and 5 i.e. father-in-law and mother-in-law of petitioner.

2. Briefly the facts of the present case are that petitioner and her husband Lakhwinder Singh were blessed with a daughter namely Amreen Kaur, aged 5/6 years. On 27.05.2020, petitioner alongwith her husband, daughter and in-laws had 'kheer' in dinner, whereafter the entire family complained of food poisoning and admitted in Pooja Nursing Home & Hospital, Raman, District Bathinda. Though the family (exceptLakhwinder Singh) was discharged after having treatment but Lakhwinder Singh died on 30.05.2020. Thereafter, in-laws of petitioner got registered an FIR bearing No.74 dated 02.06.2020 under Sections 307, 302 IPC at Police Station, Raman, Bathinda, against her on the allegations that she was responsible for the death of her husband. During investigation, police did not find petitioner's guilt but respondent Nos.4 and 5 forcibly took away her minor daughter.

3. Learned counsel for the petitioner has vehemently contended that respondent Nos.4 and 5 have no legal authority to detain the minor daughter of petitioner. Her minor daughter is just 5/6 years old and she is not maintaining good health. Once the natural guardian i.e. mother of the minor is alive, no other person can claim the custody of minor child. Hence, the petitioner craves for indulgence of this Court to get the custody of her minor daughter from respondent Nos.4 and 5.

4. Learned counsel for the State, on the basis of reply filed on behalf of respondent Nos.l to 3, has submitted that respondent No.4 - Baljit Singh made a statement before Harnek Singh, SI/SHO, Police Station, Raman, wherein he alleged that on 27.05.2020, some poisonous substance was mixed in the rice pudding (kheer) which was consumed by the family members of petitioner - Sukhjinder Kaur @ Sukhjit Kaur with an intention to kill them. Apart from this, when he intended to serve rice pudding to his grand daughter, she refused to eat by saying that her mother had asked her not to eat it. During investigation, Dr. Gurinder Kaur declared cause of death of Lakhwinder Singh due to respiratory failure. During investigation, police found the petitioner innocent and a cancellation report dated 04.01.2021 was approved by the SSP, Bathinda.Learned counsel for respondent Nos.4 and 5, taking the contents of reply filed on their behalf, submitted that Sub divisional Judicial Magistrate, Talwandi Sabo, vide order dated 29.09.2020 rejected the cancellation report and directed the official respondents to investigate the matter further. Learned counsel has further submitted that petitioner used to quarrel with her husband and respondent No.4 for getting transferred land in her name. On 27.05.2020, petitioner served poisonous sweet dish (kheer), as a result of which, Lakhwinder Singh, son of respondent Nos.4 and 5 lost his life in hospital. Respondent Nos.4 and 5 also remained indoor patients at Jindal Multispecialty Hospital, Talwandi Sabo and discharged on 02.06.2020. On the statement of Baljit Singh - respondent No.4, FIR No.74 dated 02.06.2020 under Sections 307, 302 IPC was registered at Police Station, Raman, against the petitioner. Not only this, petitioner herself abandoned her minor daughter and left matrimonial home. Petitioner has no love & affection with her minor daughter. Moreover, there are disputed questions of law and facts which cannot be decided while availing the remedy under Article 226/227 of the Constitution of India and can only be decided after due trial by the Guardian Court. The minor child Amreen Kaur, since her birth, is residing with her grand parents in a joint family. Minor Amreen Kaur is not in illegal custody, rather under protection of her grand parents