Point of Law: Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.

JUDGMENT :

1. Heard Sri M.D.Mishra along with Sri Ramanuj Yadav, learned counsel for the petitioners, Sri Vinod Kant, learned Additional Advocate General, appearing along with Ms. Sushma Soni, learned Additional Government Advocate for the State respondents and Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ankur Verma, learned counsel for respondent no. 4.

2. The present habeas corpus petition was initially filed by the paternal grandparents, arrayed as petitioner nos. 2 and 3, seeking custody of the petitioner no. 1, corpus, a minor child stated to be of age about 19 months at that point of time, who was said to be with the respondent no. 4, her maternal grandfather.

3. The pleadings in the petition are indicative of the fact that the petitioner no.1, corpus, was born on 04.06.2018 from the wedlock of the son of the petitioner nos. 3 and 4 and the daughter of respondent no. 4. It is stated that the mother of the petitioner no. 1 was seriously ill, thereafter she along with the petitioner no. 1 went away along with the respondent no. 4 for medical treatment and subsequently she died on 31.07.2019 due to acute cardiac respiratory arrest and after her death the petitioner no. 1 is in the custody of respondent no. 4. It is contended that despite requests, the respondent no. 4 is not handing over the custody of the petitioner no. 1 to the petitioner nos. 2 and 3 and that the same amounts to illegal detention.

4. A counter affidavit has been filed on behalf of the respondent no. 4 wherein it is pointed out that the respondent no. 4 was forced into bringing his daughter back due to continuous torture and cruelty inflicted upon her by the inlaws, which resulted in her death, and the newly born girl child, the petitioner no. 1, is under the care of the respondent no. 4 since the death of her mother. It is stated that the respondent no. 4, who is the maternal grandfather of the petitioner no. 1, is providing good care to her and it cannot be said that she is under any kind of illegal custody. It is, at this stage, as reflected from the ordersheet, that an application seeking impleadment of the father of the petitioner no. 1 (corpus) was moved, which was allowed on 14.02.2020 and he was permitted to be impleaded as a petitioner in the case.

5. A supplementary counter affidavit was filed on behalf of the respondent no. 4 containing assertions with regard to the harassment of the daughter of respondent no. 4 for dowry and torture and cruelty inflicted upon her which ultimately resulted in her death. Particulars of a criminal complaint and an FIR dated 12.2.2020, lodged under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act, 1961 in which the petitioner nos. 2, 3 and 4 (i.e. father and the paternal grand parents of the corpus), are named as accused, have also been mentioned.

6. A rejoinder affidavit and a supplementary rejoinder affidavits have been filed on behalf of the petitioners disputing the assertions made in the counter affidavit and the supplementary counter affidavit, respectively, and reiterating the claim with regard to custody and guardianship of the petitioner no. 1, corpus.

7. Learned counsel for the petitioners has sought to contend that the petitioner no. 1 being a minor child, in the absence of her mother, the petitioner no. 2, her father, who is the only surviving parent, would be her natural guardian, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, HMGA and accordingly the respondent no. 4 is not entitled to retain her custody and that the same is illegal. In support of his submissions, reliance has been placed upon the decisions in Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 and Kumari Palak (Minor) and another Vs. Raj Kumar Vishwakarma and others, Habeas Corpus Writ Petition No. 61687 of 2016, decided on 12.04.2017.

8. Controverting the aforesaid assertions, learned Senior Counsel appearing for the respondent no. 4 has submitted that the admitted fac