ORDER

(07.04.2021) The instant petition seeking writ of Habeas Corpus has been preferred by Smt. Vimlesh Parmanik, maternal grand mother on behalf of minor girl Aditi against her illegal detention by her paternal grand father and uncle.

2. Brief facts of the case are that Shilpi, daughter of Smt. Vimlesh Parmanik was married to Sudhir Kumar Ghosh (respondent No.4) on 19.02.2013 at Jabalpur. The couple was blessed with a daughter Aditi on 07.03.2014. Unfortunately Shilpi was diagnosed with cancer and 2 W.P. No.20854/2020 succumbed to her illness on 17.09.2019 at Mumbai. Aditi, who was only 5 and a half years old at that time continued to be in the custody of respondent No.4 at Mumbai. Further, the case of petitioner is that, within two months of the death of Shilpi, Sudhir Kumar Ghosh (respondent No.4), got married again to respondent No.5, who tortured and misbehaved with minor Aditi and got her name struck off from the school. No member of the maternal side was permitted to meet Aditi or even to contact her on phone.

On 30.11.2020, the maternal uncle (mama) of Aditi when visited the house of respondents No.4 and 5 at Mumbai, he was informed that Aditi has been sent to Kolkata to her paternal grand father and uncle. It is stated that when maternal grand mother tried to receive information regarding Aditi, through her relatives at Kolkata, they were also not allowed to meet Aditi.

3. Dr. Anil Kumar Pare, learned counsel appearing for the petitioner submitted that in deciding the question of custody of minor child, the welfare of the minor is of paramount consideration. He submitted that respondent No.4, father and natural guardian of the minor and respondent No.5, step mother of the mother do not want to look after Aditi and sent her to Kolkata to live with his 3 W.P. No.20854/2020 widowed father and unmarried brother, who are aged 85 and 45 years respectively. He submitted that there is no female in the house and the girl child, who is of seven years requires care and guidance of female relative, however she has been left in the custody of two adult male members, who have no legal right to keep her.

4. Shri Riyaz Mohd., learned counsel appearing on behalf of respondents No.4 to 7 urged that a writ of habeas corpus is not maintainable as this is not a case of illegal detention, the respondent No.4 has left Aditi in the care of her grandfather as his wife is in advanced stage of pregnancy (7 months) and could not take proper care of Aditi, he, therefore, decided to sent her to Kolkata to her grand father and uncle, where she was admitted in Bholananda National Vidyalaya, in class I as evident from the receipt dated 30.11.2020 (Annexure R-4/4). Moreover, the grand father and uncle (respondents No.6 and 7) of minor Aditi are financially well of to manage her affairs. It is submitted that Aditi is living happily as reflected from the birthday celebrations photographs dated 28.02.2021. Referring to WhatsApp chat as Annexure R-4/9, counter allegation is made that maternal grandmother and maternal uncle are harassing and threatened the 4 W.P. No.20854/2020 respondents on phone and asking for Rs. 10 lacs from the respondents.

5. Shri Darshan Soni, learned Govt. Advocate appearing on behalf of respondent No.1 submitted a report dated 02.03.2021 (Annexure R-1) stating that Aditi was found living at Kolkata with grandfather and uncle. He stated that she had shown her willingness to stay with her paternal grand father and uncle.

6. The issue regarding maintainability of the petition under Article 226 of the Constitution of India in respect of custody of minor child has long been settled by the Supreme Court and the High Courts, that the Court can invoke its extraordinary jurisdiction for the best interest of the child.

7. In the case of Tejas