K. C. Agrawal, J. - (1.) :-This is a petition under Article 226 of the Constitution filed by Vinayak Goyal through his mother Smt. Manju Goyal, wife of Sudhakar Goyal. Smt. Manju Goyal was married in 1971 to Sudhakar Goyal, son of respondents Nos. 1 and 7. Prem Prakash Goyal and Smt. Sheela Rani Goyal. One son, the petitioner Vinayak Goyal, and two daughters were born to them. Sudhakar Goyal died in February 1979. At the time of his death, Sudhakar Goyal was posted at Uttar Kashi as Executive Engineer. After his death, Smt. Manju Goyal along with the petitioner and her two daughters returned to respondents 1 and 2, her in-laws, at Ghaziabad. Since then, she had been living along with her children with them.
(2.) THE present petition under Article 226 of the Constitution for a Writ of Habeas Corpus commanding the respondents to produce the petitioner Vinayak Goyal and to direct them to hand over his custody to Smt. Manju Goyal was filed on 28-4-1981, on the allegations that Smt. Manju Goyal, the mother of the petitioner, had to leave the respondents' house on account of the mental torture meted out to her by Respondents 1 and 2. THE allegation made further was that the petitioner was forcibly held back and not allowed to accompany his mother on 20-4-1981. THE petitioner claimed that being the mother, she was the natural guardian of her son Vinayak Goyal, and that she was entitled to his custody. Holding back of the petitioner from his mother Smt. Manju Goyal amounted to illegal detention and, as such, she was entitled to a direction being issued to the respondents to hand over the petitioner to her. Pursuant to the order issued on 29-4-1981, directing the respondents to produce the petitioner in the Court on 14-5-1981, the respondents produced him in the Court and also filed a counter-affidavit controverting the allegations made in the writ petition. This was followed by filing a supplementary counter-affidavit by the respondents, which was replied by Smt. Manju Goyal. The submission advanced on behalf of the petitioner was that Smt. Manju Goyal was the natural guardian of the petitioner, who was aged about 8 years and, as such, she was entitled to his custody. The petitioner's contention was that the respondents had illeglly withheld the petitioner against the wishes of his guardian Smt. Manju Goyal and, therefore, she was entitled to his custody. The case argued on behalf of the petitioner was that his unlawful detention from Smt. Manju Goyal, who was legally entitled to his custody, was to be regarded as equivalent to unlawful imprisonment of the minor.
(3.) SECTION 6 of the Hindu Minority and Guardianship Act lays down the list of persons who can be the natural guardian of a Hindu minor. Clause (a) of SECTION 6 provides that in the case of a boy or an unmarried girl- father, and after him, the mother. In the instant case, the father is, admittedly, dead. That being so, the mother Smt. Manju Goyal is the natural guardian of the petitioner. Admittedly, respondents 1 and 2, who are the grand father and mother of the petitioner, have his custody. They are, however, not the guardian, and, as such, are not entitled to retain him against the wishes of his mother Smt. Manju Goyal, Sri R. P. Goyal, learned counsel appearing for the respondents, however, raised several questions in support of the respondents' case for defeating this petition of habeas corpus. The first argument was that the petition had not been filed by Smt. Manju Goyal on her own but had been preferred in this Court at the instigation of her relations. Counsel contended that the petition was the result of bad relationship between the father and father-in-law of Smt. Manju Goyal and the same had not been filed for vindication of any right by Smt. Manju Goyal herself, and, therefore, the same was liable to be dismissed on title ground of being not a bona fide one. The submission does not impress us. Smt. Manju Goyal is a Graduate, she can be presumed to know the consequences of her act. She had filed the petition in person on 29th April, 1981, and had, thereafter, appeared before us on 14th and 15th May, 1981. After having examined her in the Court, we are of the firm opinion that the petition had been filed by her for vindication of her right and not at the instance of her relations. In this connection, counsel invited our attention to various allegations made in the counter and supplementary counter affidavits dealing with the relationship of the petitioner's maternal grand father and paternal grand father. As we are of opinion that the relationship between them has no bearing on the controversy involved in the present petition, we consider it unnecessary to refer to them.;