Court No. - 65

Case :- HABEAS CORPUS WRIT PETITION No. - 165 of

2022

Petitioner :- Km. Sanaya Sharma (Minor) And Another

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

Counsel for Petitioner :- Amit Kumar Verma,Gambhir Singh

Counsel for Respondent :- G.A,Gajendra Singh

Hon'ble Rahul Chaturvedi,J.

Heard Shri Gambhir Singh, learned counsel for the petitioners

and Shri Gajendra Singh, learned counsel for respondent nos.4

and 5 as well as learned A.G.A. Perused the record.

Shri Gajendra Singh, learned counsel for the respondent nos.4

and 5 has filed a counter affidavit in the Court itself, is taken on

record.

Pursuant to my earlier order dated 14.3.2022 Smt. Deepa

Sharma and Smt. Rama Chauhan are present in the Court along

with Km. Sanaya Sharma (minor daughter of 5 years) and

Master Tanisk Sharma (minor son of 2½ years). Learned

counsel for the parties have identified the corpus as well as their

respective guardians.

This is a claim made by a mother Ms. Seema Sharma, who is a

named accused of Case Crime No.499 of 2020.

Submission made by learned counsel for the petitioner is that

the marriage of Ms. Seema Sharma was solemnized with the

son of Ms. Deepa Sharma, namely, Kapil Sharma (now late) on

12.3.2016 and the couple were blessed with a daughter Sanaya

and a son Tanisk. Unfortunately, Kapil Sharma committed

suicide on 16.11.2020 and in this regard a F.I.R. was got

registered by Akash Sharma against his wife Ms. Seema

Sharma and 5 others. The investigation is still going on and no

charge sheet has been submitted so far. Since after the said and

unfortunate demise of Kapil Sharma, his wife Seema Sharma

started living with her sister at Moradabad independently,

whereas, her small kids namely Sanaya and Tanisk remained in

the company of her grand-mother Ms. Deepa Sharma and since

then they are residing with her grand-mother. Ms. Seema

Sharma, being mother and natural guardian of minor children is

claiming their custody by means of instant habeas corpus

petition.

Before reaching to any conclusion it would be apt and

profitable to have a fleeting glance over the Section-6 of the

Hindu Minority and Guardianship Act, 1956 :

"6. Natural guardians of a Hindu minor.—The natural guardian

of a Hindu minor, in respect of the minor's person as well as in

respect of the minor's property (excluding his or her undivided

interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and

after him, the mother: provided that the custody of a minor

who has not completed the age of five years shall ordinarily

be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried

girl—the mother, and after her, the father;

(c)in the case of a married girl—the husband: Provided that no

person shall be entitled to act as the natural guardian of a minor

under the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by

becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.—In this section, the expression "father" and

"mother" do not include a step-father and a step-mother"

Section 6(a) of the said Act, therefore, preserves the right of the

father to be the guardian of the property of the minor child but

not the guardian of his person, whilst the child is less than five

years old. It carves out the exception of interim custody, in

distinction of guardianship, and then specifies that custody

should be given to the mother so long as the child is below five

years in age. The Act immediately provides that the custody of

a minor who has not completed the age of 5 years shall

ordinarily be with the mother. In the instant case where there is

unfortunate tussle between the mother, being natural guardian

of the kids on one hand and the grandmother and paternal aunt

(Bua) on the other hand, then this Court is of the considered