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2020 Supreme(MP) 1021
IN THE HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Sangeeta Atre (Smt.) v. State of M.P.
Writ Petition No. 13174 of 2020 (I); Decided on 5.10.2020
Headnote:
Constitution of India -- Art. 226 -- Hindu Minority and Guardianship Act, 1956 -- S.6 -- writ of habeas corpus -- petitioner married in 2014 -- girl (corpus) born in 2015 -- petitioner became widow in 2017 -- came to her parent place -- her second marriage solemnized -- respondent/ in laws of first marriage objected to second marriage and took forceful custody of child (corpus) -- petitioner filed writ petition -- corpus was produced -- custody given to petitioner for fifteen days -- respondents' objection that they are Rajpoot by caste, petitioner solemnized marriage in different caste -- self styled caste has no place in society run by rule of law -- welfare of child is paramount consideration in matter of custody -- child handed over to petitioner/natural mother. (2019) 7 SCC 42 followed.
[Para 7 & 9
Hkkjr dk lafoèkku && vuq- 226 && fganw vizkIro;rk vkSj laj{kdrk vfèkfu;e] 1956 && èkkjk 6 canh izR;FkhZdj.k fjV && ;kph 2014 esa fookfgr && ckfydk ¼dkWiZl½ dk tUe 2015 esa && ;kph 2017 eas foèkok gks xbZ && vius ekrk&firk ds fuokl ij vk xbZ && mldk f}rh; fookg vuq"Bkftr && izR;FkhZx.k@izFke fookg ds llqjky okyksa us f}rh; fookg ij vkifÙk dh rFkk ckfydk ¼dkWiZl½ dks cyiwoZd vfHkj{kk esa ys fy;k && ;kph us fjV ;kfpdk Qkby dh && dkWiZl izLrqr && ;kph dks iUnzg fnu ds fy, vfHkj{kk nh xbZ && izR;FkhZx.k dh vkifÙk fd og tkfr ls jktiwr gS] ;kph us fHkUu tkfr esa fookg fd;k gS && fofèk lEer 'kklu }kjk fofu;fer lekt esa Lo?kksf"kr tkfr dk dksbZ LFkku ugha && vfHkj{kk ds ekeys eas ckfydk dk dY;k.k loksZifj fopkj.kh; gS && ckfydk ;kph@uSlfxZd ekrk dks lkSaih xbZA ¼2019½ 7 ,l lh lh 42 vuqlfjrA ¼iSjk 7 ,oa 9
ORDER
1. Petitioner, a young lady 26 years of age, who became widow at the age of 23 years is before this Court seeking writ of Habeas Corpus with a submission that the corpus of Ms. Satakshi Thakur is in illegal custody of respondents No.5, 6 and 7 and , therefore, sought relief of production and custody of the child.
2. Facts relevant for disposal of writ petition is in narrow compass; petitioner was married to late Shri Ritesh Thakur in the year 2014. They were blessed with a baby girl (the corpus of Ms. Satakshi) in 2015. Unfortunately, Shri Ritesh Thakur passed away in 2017. They were residing in village Dhangaon, Tahsil and District Khandwa alongwith respondents No.5, 6 and 7 viz.; respondent No.5 father-in-law, respondent No.6 brother-in-law and respondent No.7 sister-in-law.
3. After sad demise of Shri Ritesh Thakur petitioner had come to her parents place at village Choli, District Khargone with the child. Like any other parents petitioner's parents also thought of well being of the petitioner and to facilitate her peaceful settled life, solemnized her second marriage with one Shailendra Atre on 30.6.2020. Respondents No.5, 6 and 7 had taken a strong exception to the second marriage of the petitioner and had taken forceful custody of minor child Ms. Satakshi. The petitioner under such circumstances having no option has approached this Court by way of the instant writ petition for the aforesaid relief primarily on the premise that for the welfare of the child aged five years, no one else except mother is in the best position to look after and bring up the child.
4. This Court while issuing notices had directed respondents No.5, 6 and 7 to produce the corpus of Ms. Satakshi Thakur – respondent No.8. On 14.9.2020 Ms. Satakshi Thakur had appeared. This Court has given the custody of respondent No.8 – Ms. Satakshi Thakur to the petitioner, though for fifteen days and thereafter the case has been posted today.
5. Shri Rohit Mangal, learned counsel for the petitioner submits that welfare of a young child is of paramount consideration in the matter of custody of child under section 6 of Hindu Marriage Act.* In the instant case custody of Ms. Satakshi Thakur was forcefully taken by respondents No.5, 6 and 7, therefore, she was in illegal confinement. Under such circumstances the instant writ petition is filed for release of the minor Ms. Satakshi Thakur from the custody of aforesaid respondents No.5, 6 and 7. The parameters for consideration of custody of child under aforesaid provisions squarely applies in the instant case regard being had to the safety and welfare of the child. Even if the petitioner has married, that by itself cannot be a reason to deny her lawful custody of the child. In any case in preference to petitioner respondents No.5, 6 and 7 by no stretch of imagination can be said to have better right for custody of the child. After all mother is the natural guardian. Therefore, prays for the custody of the child to be continued till she attains majority. To bolster his submissions learned counsel has relied on the judgment of Hon'ble apex Court in the matter of Tejaswini Gaud v. Shehar Jagdish Prasad, (2019) 7 SCC 42.
6. Per contra, Shri Harshwardhan Sharma opposes the writ petition with submission that respondents No.5, 6 and 7 are Rajpoot by caste and, therefore, the child born in the family must remain with the family. Since, the petitioner has solemnized marriage in different caste, though in Hindu community, it is a blemish to the family of Rajpoot, therefore, she has no legal, moral or customary right to have the custody of the child. Since the child is born in Rajpoot family, therefore, she must be brought up with traditions, customs and rich Rajpoot culture. It is possible if the child is with respondents No.5, 6 and 7 having Rajpoot Sanskars.
7. The aforesaid submissions of learned counsel for the respondents No.5, 6 and 7 is in despair and more of disgust than of substance. Self styled caste based propagation
