J U D G M E N T

(JABALPUR: 18.06.2021)

Per: Vijay Kumar Shukla, J.

The present intra-court appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 07.04.2021 (Annexure A-1) passed by the learned Single Judge of this Court in W.P. No. 20854/2020 (Aditi ghosh Vs. State of M.P. & Ors.), whereby the writ petition has been allowed and the custody of minor child Aditi has been directed to be given to her maternal grandmother Smt. Vimlesh Parmanik. It has been further directed that respondent No.4 Sudhir Kumar Ghosh, being father of the child will have visitation as well as contact rights. He may visit the child at Jabalpur by giving a notice to the grandmother and keep in contact through calls or video conferencing. In case the respondent No.4, in future decides to take care of his daughter, he may approach this Court again.

2. The writ petition seeking writ of Habeas Corpus was filed by Smt. Vimlesh Parmanik, maternal grandmother on behalf of minor girl Aditi against her illegal detention by her paternal grandfather and uncle. The 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 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. The case of the writ 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, when the maternal uncle (mama) of Aditi visited the house of respondents No.4 and 5 at Mumbai, he was informed that Aditi has been sent to Kolkata to her paternal grandfather and uncle. It is stated that when maternal grandmother tried to receive information regarding Aditi, through her relatives at Kolkata, they were also not allowed to meet Aditi.

3. The learned counsel for the writ petitioner submitted that in deciding the question of custody of minor child, the welfare of the minor is paramount consideration. He submitted that respondent No.4, father is the natural guardian of the minor and respondent No.5, since the step mother of the child do not want to look after Aditi, he sent her to Kolkata to live with his widowed father and unmarried brother, who are aged about 85 years and 45 years respectively. He submitted that there is no female member 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. The learned counsel for the appellant on behalf of respondent Nos.4 to 7 (appellants herein) urged that a writ of habeas corpus is not maintainable as it is not a case of illegal detention, the respondent No.4 had left Aditi in the care of her grandfather as his wife, respondent No.5 was in advanced stage of pregnancy (7 months) and could not take proper care of Aditi, and, therefore, decided to sent her to Kolkata to her grandfather and uncle, where she was admitted in Bholananda National Vidyalaya, in class I.

5. Though the counsel for the appellant also argued that he had raised objection regarding territorial jurisdiction but we do not find the same from the order of the learned Single Judge and therefore, the said issue cannot be adjudicated in the writ appeal as the question of territorial jurisdiction was not raised before the learned Single Judge. However, the writ petitioner has claimed to be a resident of Jabalpur and the marriage of her daughter Shilpi alongwith the responden