Neutral Citation No. - 2023:AHC:211786

Court No. - 81

Case :- HABEAS CORPUS WRIT PETITION No. - 827 of 2023

Petitioner :- Sahil Kumar Prajapati And 2 Others

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Sunita Chauhan

Counsel for Respondent :- G.A.,Ambrish Chandra Pandey

Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Ms. Sunita Chauhan, learned counsel for the petitioners, Sri Ambrish

Chandra Pandey, learned counsel for the respondent nos. 4 and 5 and Sri L.D.

Rajbhar, learned AGA for the State.

2. Petitioner no. 3-Punni Lal Prajapati (real uncle of the corpus) and

respondent no. 4-Dhaniram Prajapati (maternal grandfather of the corpus)

alongwith maternal grandmother of the corpus, are present in-person.

3. This habeas corpus writ petition has been filed praying for release of corpus

namely, Sahil Kumar Prajapati, aged about 6 years and Nikhil Kumar

Prajapati, aged about 5 years, from illegal custody of respondent no. 4-

Dhaniram Prajapati and to be handed over to the petitioner no. 3-Punni Lal

Prajapati.

4. Undisputedly, the real parents of Sahil and Nikhil died/murdered in an

incident which occurred on 19.08.2019.

5. Submissions of the petitioner no. 3 are that he stands in capacity of legal

guardian of the corpus, after death of his parents. He submits that petitioner

no. 3, on the request from the respondent no. 4, went with the corpus to their

house on 30.08.2023. They forcibly took Sahil and Nikhil in their custody and

turned him out therefore petitioner no. 3 lodged a report with the police, but

no action has been taken. It is further submitted that after murder of his real

brother and bhabhi, a dispute as regard guardianship arose, therefore, he filed

a case no. 22 of 2019 under the Guardians and Wards Act, 1890 and he was

granted custody of both the kids and since then he has been taking care of

them.

6. A counter affidavit has been filed by respondent nos. 4 and 5. It is

contended that this petition has been filed with false facts. The kids have been

staying with respondent no. 4 (maternal grandfather of the corpus) and their

maternal grandmother. Petitioner no. 3 filed a case under the Guardians and

Wards Act, without impleading maternal grandparents of the kids. It is

submitted that the kids have been staying with maternal grandparents since

murder of their parents in 2019 and that no such incident of forcibly detaining

them in their custody, ever took place on 30.08.2023. It is said that the

affidavit given by the petitioners contained false facts. It is further pointed out

that the case under the provisions of the Guardians and Wards Act was lodged

in a collusive manner, showing their maternal grandparents, as having already

died. It is alleged that petitioner no. 3 is interested in taking custody of the

kids, just to take advantage of the share in ancestral property which the kids

have inherited after death of parents.

7. I interacted with the kids namely, Sahil and Nikhil in the privacy of my

chamber. From looks, they do not appear to be more than 4 to 6 years. They

are too innocent, ignorant and young to take any reasoned decision.

8. Admittedly, the kids are presently staying with their maternal grandparents.

Disputed question of fact is whether they have been staying with them since

2019, when their parents were murdered or were forcibly removed from the

custody of the petitioner no. 3-Punni Lal Prajapati, just few months ago. From

the papers on record, it is revealed that Punni Lal Prajapati had filed a case

under sections 7 and 8 of the Guardians and Wards Act in 2019 itself. This is

quite clear that the instant respondents were not impleaded as party and the

real brother of Punni Lal Prajapati was the only opposite party in that case

under the Guardians and Wards Act. This case was decided in favour of Punni

Lal on 13.04.2022. This fact is not denied by the petitioner no. 3 that now

respondent no. 4 has filed an application for recall of the aforesa