IMPORTANT POINT
Widow mother is natural guardian of her minor child.

ORDER

This habeas corpus petition under Article 226 of the Constitution of India has been filed by the petitioner with regard to illegal detention of her minor son aged about one and a half years and seeking custody of her minor son, who is admittedly in illegal custody of his grand-parents.

2. Brief facts of the case are that the petitioner solemnized marriage with deceased Lalaram Bairwa on 15.03.2021. Out of their wedlock, one male child was born on 18.10.2022. The petitioner was appointed as a School Lecturer Grade-I on 01.02.2024. Unfortunately, the husband of the petitioner died in a road accident on 18.02.2024. Thereafter, the petitioner left her matrimonial home to join her duties, where she was posted in District Tonk. During this, custody of the minor child remained with the respondents, who thereafter did not hand over custody of her minor son and illegally detained him, therefore, she has filed this habeas corpus petition with regard to illegal detention of her minor son and seeking custody of her minor son.

3. Heard learned counsel for the parties.

4. Learned counsel for the petitioner has submitted that the petitioner is mother of the minor child and she being natural guardian is entitled for the custody of the minor son in view of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956. Counsel has further submitted that the petitioner is a Government servant and getting a handsome monthly salary. She can very well look after her son and for his bright future. Counsel has further submitted that for the interest and welfare of the minor son, his custody should be handed over to his natural guardian i.e. the petitioner-mother.

5. Counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Tejaswini Gaud & Ors. Vs. Shekhar Jagdish Prasad Tewari & Ors. reported in (2019) 7 SCC 42.

6. Learned counsel appearing on behalf of the respondent Nos.4 to 9 has submitted copy of the reply to the writ petition today in the Court itself. While opposing the writ petition, he has submitted that the husband of the petitioner - Lalaram was son of respondent No.4. Counsel has submitted that husband of the petitioner died in abnormal circumstances and he also left a suicide note, according to which, the petitioner was responsible for committing suicide by him. Counsel has further submitted that respondents have also lodged a police complaint, however, when no action was taken by the police, they have filed a criminal complaint in the Court of competent jurisdiction, which is still pending. A copy of the said complaint is also annexed with the reply submitted by the respondents. Counsel has further submitted that in the facts and circumstances of the present case, minor child will not be safe in the custody of his mother and for the welfare of the child, the respondents are entitled for having custody of the minor child. Counsel has, thus, submitted that in the facts and circumstances of the present case, this habeas corpus petition is not maintainable.

7. Learned counsel for the respondents has relied upon the judgments of the Hon’ble Supreme Court in the cases of Dharmendra Choudhary Vs. State of Rajasthan reported in 2024 0 Supreme(Raj.) 163 as well as Tejaswini Gaud (Supra).

8. Learned Government Advocate-cum-Additional Advocate General has submitted that as per status report dated 21.08.2024, nothing adverse has been found against the petitioner. The said report is taken on record as ‘C1’.

9. Hon’ble Supreme Court in the matter of Gautam Kumar Das Vs. NCT of Delhi & Ors. arising out of SLP No.5171/2024 decided on 20.08.2024 in Para Nos.15, 16 has held as under:-

“15. Recently, this Court, in the case of Nirmala (supra) in paragraph 16 has also observed that no hard and fast rule can be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of minor child is concerned. It has been held that as to whether the writ court should exercise its jurisdi