Habeas corpus proceedings are not suitable for determining custody legality; proper inquiries should occur in civil courts to ensure the child's welfare.

JUDGMENT :

Hon'ble Karunesh Singh Pawar, J.

1. Rejoinder Affidavit filed by learned counsel for the petitioner is taken on record.

2. Heard learned counsel for the petitioner, learned A.G.A. for respondent nos.1, 2 and 3 and Shri Anoop Kumar Singh, learned counsel for respondent nos.4 and 5.

3. The present petition has been filed by the detenue Baby Muskan Sharma through her father and natural guardian Praeep Kumar alleging that the detenue has been illegally detained by respondent nos. 4 and 5, who are maternal grand parents of the detenue, therefore, the petitioner through this petition has prayed for the following main relief:-

1. Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite party no.4 to 5 to produce the petitioner/detenue before this Hon'ble Court and set her at her liberty forth with and he may be given in custody of the deponent i.e. father and natural guardian."

4. Submission of learned counsel for the petitioner is that the marriage of the petitioner with the daughter of respondent nos. 4 and 5 took place on 13.7.2013 and out of the wedlock the detenue was born on 18.4.2017. Owing to the illness wife of the deponent Rajni Devi passed away and after death of her mother the detenue is staying with her grand parents. With the consent of respondent nos. 4 and 5 the second marriage has been performed by the deponent on 22.10.2022.

5. Learned counsel for the petitioner further submits that the petitioner has given Rs.50,000/- to the respondent no.4. Respondent no.4, instead of depositing the said amount in the detenue account, has deposited the said amount in her bank account.

6. Learned counsel for the petitioner next submitted that the deponent is the father of the detenue and step mother of the detenue is living with him and they are capable of taking care of the detenue.

7. Per contra, learned counsel for respondent nos. 4 and 5 has disputed the contention made by the petitioner. He submits that the mother of the detenue died due to hanging on 5.9.2022 and not due to illness. To support his contention he has invited attention of the Court towards panchnama dated 5.10.2010 (Annexure-CA-1).

8. Learned counsel for respondent nos. 4 and 5 has further disputed the submission of learned counsel for the petitioner that Rs.50,000/- given by the father of the detenue has been usurped by respondent no.4. He submits that the amount of Rs.50,000/- has been deposited in the name of Muskan Sharma on 13.12.2020 as Fixed deposit (Kisan Vikas Patra). A copy of the same is on record as Annexure CA-2.

9. The date of marriage of the daughter of the respondent no.4 and 5 has also been disputed by learned counsel for respondent nos.4 and 5. It has been further stated in paragraph 5 of the counter affidavit that the marriage was solemnized in the year 2006 and mother of the detenue died on 5.9.2022 and since her death the detenue is residing with nana and nani (respondent nos.4 and 5).

10. He has further submitted that Muskan Sharma, the detenue is studying in class Ist at Shyam Singh Shyam Devi Public Inter College Kakrahi, District Sitapur.

11. The averments made in paragraph 12 of the writ petition have also been disputed by learned counsel for respondent nos.4 and 5. It has been stated that the deponent on 13.12.2022 had entered into an agreement to pay the maintenance to Muskan Sharma every month. The copy of the agreement dated 13.12.2022 is also on record as Annexure CA-3 to the Counter Affidavit.

12. He further submits that Muskan Sharma, the detenue is living happily with her ma