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IN THE HIGH COURT OF ALLAHABAD
K. C. BHARGAVA
ANKUR TRIPATHI ALIAS TINNU - Appellant
Versus
RADHEY SHYAM PANDEY - Respondents
W. P. 173 Of 1992
Decided On : 09/29/1993
HABEAS CORPUS - CUSTODY OF MINOR CHILD - PARENTS VERSUS MATERNAL GRANDPARENTS AND AUNT - WELFARE OF THE CHILD - NATURAL GUARDIANSHIP - ALTERNATIVE REMEDY - JURISDICTION.
Fact of the Case:
Parents of a 9-year-old minor child filed a habeas corpus writ petition seeking custody of the child from the maternal grandparents and aunt, who had taken the child from the parents' custody when the mother fell seriously ill. The parents alleged that the child was being ill-treated and not given adequate food and clothing. The grandparents and aunt claimed that the parents had voluntarily entrusted the custody of the child to them and that they were better equipped to take care of the child.
Finding of the Court:
The court held that the parents were the natural guardians of the child and had a right to his custody. The court found that the grandparents and aunt had no legal right to keep the child in their custody and that their refusal to hand over the child to the parents amounted to illegal detention. The court also held that the alternative remedy under the Hindu Minority and Guardianship Act was not available to the parents as they were already the natural guardians of the child.
Issues: 1. Whether the parents were entitled to the custody of the minor child? 2. Whether the grandparents and aunt had any legal right to keep the child in their custody? 3. Whether the alternative remedy under the Hindu Minority and Guardianship Act was available to the parents?
Ratio Decidendi: 1. The court held that the parents were the natural guardians of the child and had a right to his custody. The court relied on the provisions of the Hindu Minority and Guardianship Act, which provides that the father is the natural guardian of Hindu minors and after the death of the father the mother is the natural guardian. 2. The court held that the grandparents and aunt had no legal right to keep the child in their custody. The court found that the parents had not voluntarily entrusted the custody of the child to them and that they had refused to hand over the child to the parents despite their repeated requests. 3. The court held that the alternative remedy under the Hindu Minority and Guardianship Act was not available to the parents as they were already the natural guardians of the child. The court found that the parents could not be driven to seek their remedy under the Act because the detention of the minor by the grandparents and aunt was illegal.
Final Decision: The court allowed the petition and directed the grandparents and aunt to hand over the custody of the child to the parents within fifteen days.
( 1 ) BY means of this habeas corpus writ petition the parents of minor child Ankur Tripathi alias Tinnu, who is aged about 9 years, have sought custody of the minor child from opposite parties.
( 2 ) AT the outset it will be relevant to mention that opposite party No. 1, Radhey Shyam Pandey, is the maternal grandfather of the child and is aged about 57 years, opposite party No. 2, Srimati Rama Pandey is the maternal grandmother and is aged about 55 years and opposite party No. 3 Srimati Kamlesh who is maternal aunt of the minor is aged about 30 years. The parents of the minor reside at Lucknow while the opposite parties reside at Kanpur. According to the averments made in the petition the marriage between the parents of the minor took place on 16/05/1977 and two sons were born, the elder one is Gaurav Tripathi who is aged about 11 years of age, the younger one is Saurabh Tripathi alias Tinku who has been renamed by the opposite parties as Ankur Tripathi, was born on 7/07/1983 and who is petitioner in the present case. After about one year of the birth of the petitioner the mother of the petitioner, Srimati Akhilesh Tripathi, fell seriously ill and opposite parties 1 and 2 came to Luck-now and took away the petitioner from the guardianship of the parents of the minor for looking after the minor during the illness of the petitioners mother but when the petitioners mother recovered from illness she went and stayed with her parents at Kanpur for some month. She returned to Lucknow with the petitioner in the month of December, 1985 and the minor was admitted in St. Thomas School, Lucknow in pre-nursery class where his elder brother was also studying. After about two months the opposite parties 1 and 2 came to Lucknow and took away the minor petitioner for a couple of days. Thereafter whenever the parents of the petitioner asked for the custody of the minor petitioner the same was avoided by the opposite parties on some pretext or the other and the minor was got admitted in a school at Kanpur and thereafter they insisted that his study may be allowed to be completed at Kanpur. When on 3-5-1992 the parents of the minor petitioner went again to Kanpur to bring back the petitioner they were not allowed to do so and were turned out of the house. Thereafter the parents of the minor petitioner gave an application to the Inspector Incharge, Police Station, Kalyanpur, Kanpur City asking for release of the petitioner from the clutches of the opposite parties. Thereafter on 17/05/1992 the parents of the minor petitioner again went to the house of the opposite parties to bring back the minor petitioner to Lucknow but they were abused stating that they had gifted the minor to opposite party No. 3 and now she is the mother of the minor. They were also turned out of the house by the opposite parties. The petitioner is being ill-treated and adequate food and clothing are not being given to him. The opposite party No. 1, Radhey Shyam Pandey, is working as Accountant in Jal Nigam Ganga Pradushan Shakha, Sharda Nagar and is drawing a little salary and opposite parties 1 and 2 are old and infirm and unable to take proper care of the minor petitioner. Opposite party No. 3, Smt. Kamlesh was married to Sri A. N. Pathak but she had left his company about 17 years back and is now living as a kept of Sri R. D. Tiwari. She is also working in Jal Nigam as steno and is drawing a meager salary. It is also alleged that her company with the petitioner will leave an unremoveable scar on the education, life and character of the petitioner and it will not be in the interest of the minor to remain in the custody of the opposite parties. It is also alleged that the father of the petitioner is a lecturer in Chemistry in Jai Narain Degree College, Lucknow since 1969 and at present is in a senior scale of Reader drawing a gross salary of Rs. 7000. 00 per month and has only his wife and elder son as his dependents. His wife, Smt. Akhilesh, is also a gra
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