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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Vaibhavi Sharma (Minor) And Another - Appellant
Versus
State Of U.P. And 3 Others - Respondent
Habeas Corpus Writ Petition No.2805 of 2018
Decided on : 08-10-2020
Guardians and Wards Act, 1890 – Hindu Minority and Guardianship Act, 1956 – Sections 6, 13 – Unlawful Custody – Unlawful Detention – Habeas Corpus – Akhilesh Sharma, the second petitioner says that his minor daughter, Km. Vaibhavi Sharma is in the unlawful detention of Surya Kant Sharma, the minor’s grandfather (maternal) and the fourth respondent to this petition. – Akhilesh Sharma wants this Court to issue a writ, order or direction in the nature of habeas corpus to liberate his minor daughter, Km. Vaibhavi Sharma from unlawful custody of the fourth respondent and to entrust the minor’s custody to him.
Finding of the court:
Court finds that the minor, Km. Vaibhavi Sharma is an intelligent and bright child. She attends a good School and reads in Class-II. – She has expressed her definitive desire to stay in her grandfather's (maternal) household, where she is integrated into the family, almost since birth. – She has been with them since she was seven months old. – Father has not been able to come up with a logical explanation as to why he entrusted the care of his infant daughter to his father-in-law, the fourth respondent. – He has also not been able to show by any evidence the steps he took earlier to secure the minor's custody. – Grandfather is a retired Government servant and apparently has means to raise the minor. – Minor seems to be happy in her grandfather's household. The emotional comfort and ease that the child finds in his/ her home is key to the development of a balanced personality. – Within the limited scope of the inquiry that this Court undertakes in a petition for a writ of habeas corpus, this Court finds that affirmatively speaking the fourth respondent has shown that the detenue lives happily in his household, where she is taken care of, physically, emotionally and morally, and in all other necessary facets of her life and personality. – On the other hand, there is one decisive feature that this Court cannot ignore. – Father has remarried and there is a stepmother for the minor-detenue, if she were asked to be placed in the father's household. – There is no presumption that every stepmother is a vamp, but the presence of a step-parent in the household of his/ her parent is certainly a strong circumstance that would weigh against the father's claim to custody; at least, in these summary proceedings it would be a very important factor. – There is then the fact that the minor has stayed with the grandfather in his household, almost since her birth. – In the circumstances, it would be very unjust to uproot her from that family and transplant her in her father's household. – There is no such circumstance obtaining here that may persuade this Court to hold the grandfather's custody of the minor to be unlawful. – It is made clear that it will be open to the second petitioner to establish his entitlement to the minor's custody before a Court of competent jurisdiction by invocation of such remedy as may be advised. – In the event, the second petitioner approaches a Court of competent jurisdiction to establish his claim to the minor's custody, it shall be determined by that Court in accordance with law, without being influenced anything said here.
Result: – Habeas Corpus Writ Petition Dismissed
JUDGMENT :
1. Akhilesh Sharma, the second petitioner says that his minor daughter, Km. Vaibhavi Sharma is in the unlawful detention of Surya Kant Sharma, the minor’s grandfather (maternal) and the fourth respondent to this petition. Akhilesh Sharma wants this Court to issue a writ, order or direction in the nature of habeas corpus to liberate his minor daughter, Km. Vaibhavi Sharma from unlawful custody of the fourth respondent and to entrust the minor’s custody to him.
2. A rule nisi was issued in this case on 05.10.2020, ordering the minor to be produced before this Court on 08.10.2020. The minor was produced. At the hearing of the rule, besides the minor, Km. Vaibhavi Sharma, who was produced by the police, the minor’s father, Akhilesh Sharma and her grandfather, Surya Kant Sharma, were also present. This Court individually ascertained the stand of each of these parties, including the minor. This Court, particularly, inquired of the minor, her choice and comfort in the matter of custody. The Court also spoke to the minor’s father and her grandfather (maternal), not only to ascertain their stand, but to gain acquaintance with so much of their affairs as would materially bear on the minor’s welfare.
3. This cause has arisen in the backdrop of facts that Akhilesh Sharma, the second petitioner and Smt. Priyanka Sharma were married according to the Hindu rites at Bulandshahr on 16.02.2004. The late Smt. Priyanka Sharma was Surya Kant Sharma’s daughter. Akhilesh Sharma and Smt. Priyanka Sharma lived together in their matrimonial home. Two children, a son, Vaibhav and Km. Vaibhavi Sharma, a daughter were born of the wedlock of parties. Vaibhav Sharma was born on 24.07.2006, whereas Km. Vaibhavi Sharma (the detenue) was born on 05.11.2013. As misfortune would have it, Smt. Priyanka Sharma met with an accident by fire while cooking on 11.07.2014. Akhilesh Sharma is said to have done his best to save his wife, but in vain. Akhilesh Sharma too, sustained serious burn injuries in the incident. Smt. Priyanka Sharma died of her injuries on 17.07.2014, during treatment at the Dr. Ram Manohar Lohia Hospital, New Delhi. Akhilesh Sharma was not prosecuted for any offence relating to his wife’s accidental death, his innocence being known to the wife’s family, including the fourth respondent. It appears that after Priyanka’s death, the parties’ minor children, Vaibhav and Km. Vaibhavi Sharma continued to live with their grandmother (paternal), Smt. Meena Sharma, who took good care of them. The son, Vaibhav is reading at the Heritage Academy, Modi Nagar, District Ghaziabad.
4. Akhilesh Sharma has moved on in life and has remarried one Smt. Sadhna Sharma. He remarried on 05.02.2016, well within the knowledge of Surya Kant Sharma and other kinsmen of his deceased wife. Smt. Sadhna Sharma is a Trained Graduate Teacher and employed as such in a School at Modi Nagar. She is claimed to be in receipt of a salary of Rs.6000/-per mensem. In addition, Smt. Sadhna Sharma also undertakes private tuitions, that yield her a further income of Rs.4000/-per month. Akhilesh Sharma claims to be well educated and a qualified young man, who undertakes private tuitions, that yield him an income of Rs.25,000/-per month. He is an income tax payee. Akhilesh Sharma says that when the detenue was an infant of eight months, she was taken away by Surya Kant Sharma with the assurance that as soon as she grows a little older and becomes a manageable child, she would be entrusted back into the care and custody of her father. This happened before Akhilesh Sharma remarried.
5. It is also claimed by Akhilesh Sharma that Km. Vaibhavi Sharma came back to him in the month of May, 2017, comfortably settling in her father’s family. Surya Kant Sharma visited Akhilesh Sharma on 15.06.2017 and persuaded him to permit Km. Vaibhavi Sharma to accompany her grandfather (maternal) for a few days. Akhilesh Sharma agreed and Km. Vaibhavi Sharma went along with the fourth respondent. Akhilesh Sharma
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