- (1.) S. N. Sahai, J. This is a petition for writ of habeas corpus raises question regarding detention and custody of a child aged ahout 7 years, Pravin Kumar Sharma by name. Tie child is at present in police custody and is detained in Rajkiya Kishore Grajh, Char. dpur Sayau Distt Bijnor before the police took the child in its custody, he was in the custody of the petitioners and was taken away from their custody by the police during investigation on the basis of a first information report of case crime No. 508 of 1993 under Sections 363, 342, 352 and 506 I. P. C. of P. S. Sahawan Distt. Badaun. The said crime case has been registered by the police on this basis of a report lodged by Ramesh against Lakhichandra, Smt. Urmila, wife of Lakhichandra and Km, Pushpa daughter of Lakhichandra and Hukumchandra S/o Dwarka Prasad in respect of the kidnapping of his son on 1. 4. 1987. The petitioners claimed that the child was handed over to them by Dr. R. K. Vashya in Raj Hdspital, Tikatgunj Distt. Badaun, soon after the birth of the child on 31-8-1987. The certificate to that effect (An-the writ petition) shows that a child was porn to a poor woman and same was handed over to the petitioners on 31. 8. 1987 for being brought up and for his maintenance.
(2.) BESIDES the State of U. P. and others Ramesh who has lodged the said F. I. R. has also been irnpleaded as respondent No. 4. Ramesh his filed a counter affidavit in this case C. J. ML, Haridwar, who has been irnpleaded as respondent No. 2 has also filed a counter affidavit. It is under his orders that the child is now kept in the Rajkiya Kishore Grih as mentioned above. We have heard learned Counsel for the parities and have gone through the record. There is a dispute between the parties with regard to the identity of the child. The police is investigating the matter and no finding can be given on the basis of the material on record at this stage that the child is the son of Ramesh as claimed by him. The matter is to be Decided on the basis of evidence which may be produced by the parties in the case. The order of learned C. J. M. dated 26. 4. 1994 (Annexure-6) shows that the medical examination of the child was performed by Chief Medical Officer, Haridwar. (It is by this order that the child has been Kept in the Rajkiya Kishore Grin. The C. M. O. has examined the blood group of the child and has found that it tallies with the blood group of Ramesh. But he has opined that it cannot be conclusively stated on the basis of a comparison of blood group alone that the child is son of Ramesh. He has suggested that genetic test should also be held by state Medico- Legal Cell, Lucknow. In the supplementary counter affidavit filed by the C. J. M. It has been stated that some test is also necessary to be conducted at Hyderabad. All this will naturally take time. At present the situation is that the child has been taken away by the police from the custody of the petitioners and has been kept in Rajkiya Kishore Grih under the orders of the learned C. J. M. , Haridwar. Evidently the child has been taken away from the custody of the petitioners on the basis of suspicion, may be reasonable suspicion, but that is not enough. The petitioner cannot be deprived of their right to the custody of the child until it is established that some other person has a better legal right to have the custody. The petitioners have stated that the child has been brought up by him ever since his birth for the last seven years, and there is no reason to disbelieve their statements at this stage. It, therefore, appears to be reasonable that the petitioners should have the custody of the child and be given due opportunity to take care of the child and to take proper steps for his welfare and development. However, we think that the physical custody of child should not be immediately made over to the petitioners, because the matter relating to the identity of the child is still under investigation. The child may be required to be produced before the court or the police authorities in that connection and it is to be ensured that he is available for the purpose.
(3.) IT is well-known that in a proceeding relating to the custody and guardianship of a minor, it is the welfare of the child which is of paramount importance. After hearing the submissions of the learned Counsel for the parties, we have formed an opinion that atmosphere in the Rajkiya Kishore Grih may not be very congenial to the growth and proper development of the child. We, therefore, requested the learned Counsel for the parties to suggest some other institution where the child may be kept during the pendency of the proceedings. Fortunately, learned Counsel for the parties have made an agreed statement that during the pendency of the proceedings, the child may be kept in Gurukul Kangri, Haridwar. The petitioners are ready and willing to bear the necessary expenses in this behalf. This is one aspect of the matter. At the same time we feel that all the medical tests which are necessary should be performed expeditiously and the matter relating to the identity of the child should be decided as early as possible, otherwise it may prejudicially affect not only the interest of the parties but also the interest of the child. We are, therefore, of the opinion that such tests should be completed within a month. For the above reasons, we direct that the aforesaid Praveen Sharma alias Sonu will be kept in Gurukul Kangri, Haridwar during the pendency of proceedings until the matter relating to his identity is decided in accordance with law. The petitioners shall bear all expenses for the maintenance and up keep of the child in Gurukul Kangri, Haridwar. If it is found that the child is not the son of Ramesh,the physical custody of the child shall be restored to the petitioners. If it is found that the child is the son of Ramesh, then appropriate orders will be passed by the court concerned for the custody and maintenance or the child. It will be open to the learned CJ. M. to issue such interim directions, as may be proper and reasonable, from time to time, with regard to all matters, relating to the custody maintenance etc. of the Child including access of either party to the child. Learned CJ. M. will see that the genetic test and all other necessary medical tests are made and completed within one month by the State Medico Legal Cell, Necessary steps for compliance will be taken by him in this direction.;