Court No. - 29

Case :- SPECIAL APPEAL DEFECTIVE No. - 442 of 2021

Appellant :- Vandana Gupta And Another

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

Counsel for Appellant :- Ramesh Chandra Yadav

Counsel for Respondent :- C.S.C.,Manu Sharma

Hon'ble Munishwar Nath Bhandari,Acting Chief Justice

Hon'ble Subhash Chandra Sharma,J.

Civil Misc. Exemption Application No. 1 of 2021

The application seeking exemption from filing certified copy of the order of the

High Court is allowed.

The defect stands cured.

Memo of Appeal

By this appeal, a challenge is made to the order dated 15.06.2021 on Habeas

Corpus Petition preferred by the minor alongwith his father. The Habeas Corpus

Petition was allowed with a direction to handover the custody of the petitioner

no. 1 to petitioner no. 2 (father). The detailed facts pertaining to the case has

been given by learned Single Judge showing that after the marriage, the

petitioner no. 1 took birth. While the wife was expected to deliver the second

child, succumbed to Covid-19 Pandemic. The petitioner no. 1 was forcibly

retained by the maternal grand-mother and when custody was not given, a

Habeas Corpus Petition was filed showing petitioner no. 1 in illegal custody.

The learned Single Judge find substance in argument, thus issued direction for

custody of petitioner no. 1 to her father (petitioner no. 2).

Learned counsel for the appellants submitted that the custody of the daughter

could not have been given to her father. The learned Single Judge failed to apply

the ratio propounded by the Hon'ble Supreme Court in several judgments and

thereby impugned order is without jurisdiction, hence to be set aside.

We have considered the argument raised by the learned counsel for appellants.

He could not show a single judgment to hold that the direction given by the

learned Single Judge in the facts and circumstances of the case could not have

been given in Habeas Corpus Petition. It is inspite of the fact that the father is a

natural guardian. The direction was given to give the custody of the child to her

father.

The custody of the child has already been given to the father yet the maternal

grand-mother has filed this appeal alongwith maternal uncle to get the custody

of the child during life time of the father. It is not in dispute that the age of child

is only three years thus, she cannot form opinion about her custody and

otherwise her father is natural guardian.

Thus, we do not find any reason to interfere in the judgment of the learned

Single Judge where all the relevant facts pertaining to the case have been

considered. It is not that the child was staying with maternal grand-mother or

uncle but was with her mother during her life time who succumbed to Covid-19

Pandemic. She came from Hyderabad where she was serving and only for that

reason child was with the appellant for the intervening period.

In view of the above, finding no merit in the appeal, the same is dismissed.

Order Date :- 3.8.2021

A. Singh

.

(Subhash Chandra Sharma,J.) (Munishwar Nath Bhandari, A.C.J.)