The main legal point established in the judgment is the entitlement of the natural guardian, particularly the father, to claim custody of the child. The court emphasized that the detention of a minor by a person who is not entitled to legal custody is equivalent to illegal detention and that the father, being the natural guardian, was justified in seeking custody of the child under Article 226 of the Constitution of India.

JUDGMENT :

(Karunesh Singh Pawar, J.)

1. The petition seeks issuance of a writ in the nature of Habeas Corpus commanding the opposite party No.4 to produce the detenu Vedant in Court and give him in the custody of the deponent/father Vishnu Kumar alias Vishnu Kumar Ayodhyavasi Sonar.

2. Heard learned counsel for the petitioner and learned Additional Government Advocate as also learned counsel for respondent No.4.

3. Learned counsel for the petitioner submits that the marriage of father of the detenu was solemnised with Aprajita (now deceased) on 10.2.2018. Out of wedlock, the detenu was born on 19.4.2019. On 11.11.2019, Aprajita met with an accident and suffered burn injury. She was taken to Sushrut Institute of Plastic Surgery Burn and Trauma at Lucknow, however, she could not survive and succumbed to the injuries on 20.11.2019. During treatment, the doctor recorded the statement of the deceased wherein she has stated that while offering prayer, she met with an accidental burn injury. During her treatment between 11.11.2019 and 20.11.2019, respondent No.4 and his other family members were present in the hospital. During all this period, they have not levelled any allegation against the deponent Vishnu Kumar.

On 26.7.2021, respondent No.4 took the detenu to his house and confined him. The deponent Vishnu Kumar along with his father went to the house of respondent No.4 to bring his minor son but respondent No.4 Shachindra Dev Arya refused to return the detenu. In the meantime, due to the dispute regarding the custody of the detenu between the parties, an application under section 156(3) CrPC was given by respondent No.4 on 21.8.2021.

The deponent filed the present petition of habeas corpus before this Court on 8.11.2021. After exchange of pleadings, vide interim order dated 10.12.2021, this Court has handed over custody of the detenu to the petitioner. After the custody was handed over to the petitioner, on 13.12.2021, a first information report No.342 of 2021 under sections 498-A, 304-B, 506 I.P.C. and sections 3/4 Dowry Prohibition Act, P.S. Musafirkhana, district Amethi was registered against the petitioner and other family members after more than two years of the death of mother of the detenu. After investigation, the investigating officer submitted final report in favour of the petitioner in first information report No.342 of 2021 (supra) on 25.2.2022. A protest petition was filed by the respondent No.4 and the learned Magistrate has directed for further investigation on the protest application. The petitioner deponent performed second marriage on 8.7.2022 and the detenu is enjoying the company of his father and step mother along with grand parents.

After further investigation, police did not find any complicity of the deponent and again a final report was submitted in favour of the petitioner on 14.10.2022. Second protest petition was filed by respondent No.4 on 15.2.2023 which was treated as a complaint. Till date, no summoning order has been passed.

Learned counsel for the petitioner has submitted that the detenu is aged about 4 1/2 years school going child and has been living with the petitioner since long, and being father and natural guardian, the petitioner is entitled custody of the detenu.

In support of his contention, learned counsel for the petitioner has relied on judgment in Tejaswini Gaud and others versus Shekhar Jagdish Prasad Tewari (2019)7 SCC 42 (paras 14, 19, 21), Garv Mishra (Minor) through his father Anurag Mishra versus State of U.P. and others Habeas Corpus No.24874 of 2019 (paras 5, 11, 14, 15).

4. Per contra, learned counsel for respondent No.4 has submitted that the character of the father of the detenu is suspicious in nature. He has murdered the mother of the detenu and a complaint case for the same is pending against him. The respondent No.4 has proposed to bequeath a shop featuring glass business in the name and style of the detenu to look after the overall welfares of the detenu and his finan