Point of law: Hindu father has married a second wife is no ground whatsoever for depriving him of his parental right of custody. The father ought to be the guardian of the person and property of the minor in ordinary circumstances

JUDGMENT :

1. Heard Shri Dilip Kumar, learned Senior Counsel assisted by Sri Rizwan Ahmad, learned counsels for the petitioner and Shri Anil Kumar Srivastava, learned Senior Counsel assisted by Shri Rahul Shukla, learned counsels for the respondents.

2. The instant petition has been filed for custody of the corpus (Saksham Pathak) through Amit Kumar Pathak (father) (A-1). The corpus is in the custody of the respondents.

3. The facts giving rise to the instant petition filed for writ of habeas corpus is that A-1 is the only natural and legal guardian of the corpus aged about four years. A-1 is in the employment of Central Reserve Police Force (CRPF); he came to be married to Archana, daughter of Sri Vinod Dubey, on 31 January 2013. After marriage, wife of A-1 started living at the matrimonial house at village Merhi Dudhi, Tehsil, Bharthana, district Etawah. A-1, at intervals, used to visit his native village on leave being sanctioned by the CRPF. From the wedlock, corpus was born on 02 October 2016, at Etawah. In the process of delivery, Archana’s physical condition became critical, she was shifted to Intensive Care Unit (I.C.U.), and was diagnosed of cardiac disorder by the attending doctors, she was advised to take treatment from a specialist. On 23/24 November 2016, Archana was brought by her brother (second respondent) to consult Heart Specialist at district Ujjain (Madhya Pradesh) at her home district. Thereafter, Archana was shifted for consultation and treatment to Rhythm Heart Institute, Vadodara, Gujarat, on 5 August 2017, by A-1 and her brother (second respondent). On improvement, Archana returned to her matrimonial home and continued treatment, however, on 11 October 2018, she succumbed to a massive heart stroke. At the relevant time, A-1 was posted at Meerut and was taking training for United Nation Mission, being a regular constable of 217 Battalion, Chhattisgarh. A-1 participated in the funeral of Archana at his native village. Archana’s mother, brother and two sisters i.e. second to fifth respondents participated in the funeral.

4. It is urged by the learned counsel for the petitioner that the fourth respondent Sapna Dubey, aged about 27 years, continued to stay at the matrimonial home of Archana on the pretext that she would be able to look after the infant child being his mausi. It appears, thereafter, in January 2019, the fourth respondent along with the corpus returned to Ujjain on the pretext that the grand mother (nani) wanted to meet and see the child. It is urged that in March, during Holi, A-1 went to take the corpus back to his native village, but on the request of his in-laws he left the corpus there and directly went to his place of posting at Meerut after exhausting his leave. In the month of September 2019, A-1 again visited his native village and requested his in-laws to bring back his son during the leave period. It appears that the corpus was regularly visiting the native village of A-1 along with the fourth respondent and at times was residing at district Ujjain, as A-1 was not available having regard to the nature of his duty. On 5 November 2019, A-1 came to be posted at 139 Battalion at Delhi. At that relevant time the fourth respondent along with the corpus was at the native village of A-1 at district Etawah. It appears that the fourth respondent desired to live with the corpus and marry A-1 as she would be the most appropriate person to look after the infant child.

5. It is submitted that the desire of marriage by the respondents was expressed at a time when the second marriage proposal of A-1 with Varsha was at a mature stage. Varsha is a well educated lady and her parents had agreed for the second marriage and also to look after the child. The fact that the marriage negotiations of A-1 with Varsha was going on and was at a mature stage was fully known to the fourth respondent and the other in-laws.

6. It is submitted that during this point of time the corpus was forcefully taken away by the seco