- (1.) This writ petition in the nature of habeas corpus has been filed on behalf of two minor children, namely, Km. Anshoo aged about 6 years and Ashoo aged about 4 years through their mother Smt. Krishna Goswami with the prayer that the opposite parties no.2 and 3 be directed to handover the custody of the minor children to their mother Smt. Krishna Goswami.
(2.) The pleadings of the writ petition reveal that the opposite party no.2 Virendra Giri is the brother of the husband of Smt. Krishna Goswami and the opposite party no.3 is son-in-law of the Jeth of Smt. Krishna Goswami. The marriage of Smt. Krishna Goswami was solemnized with Rakesh Giri. Prior to this, Rakesh Giri was married to the real sister of Krishna Goswami, namely, Kiran Goswami. It is said that Kiran Goswami gave birth to petitioner no.2 and thereafter she died. After the death of Kiran Goswami, her sister Krishna Goswami performed marriage with Rakesh Giri and the petitioner no.1 Km. Anshoo was born out of their wedlock. It is further said that the brother of Rakesh Giri namely Virendra Giri had some dispute with regard to the agricultural land and for this reason the relations between Rakesh Giri and his brother Virendra Giri were not cordial. It is further said that the opposite party no.2 Virendra Giri with the help of his associates took away Rakesh Giri with him on the pretext that Shamshad and Rafat Ali would purchase the agricultural land. Thereafter Rakesh Giri did not turn up. When Rakesh Giri did not return back for a considerable period of time, Smt. Krishna Goswami gave an application to the police but the FIR was not lodged. On the contrary, the opposite party no.2 with the help of Shamshad and Rafat Ali lodged an FIR against Smt. Krishna Goswami which was registered at Crime No.521 of 2014 under section 364 IPC. In pursuance of the aforesaid FIR, Smt. Krishna Goswami was brought to the police station and was sent to jail. The petitioners were taken away by the opposite party no.2 when their mother Smt. Krishna Goswami was sent to jail. She was released on bail on 25.05.2015 but found her house locked. In these circumstances, the petitioners are in illegal detention of the opposite parties no.2 and 3. Smt. Krishna Goswami being the mother of the petitioners has a right to keep her children with her while opposite parties no.2 and 3 have no right to keep the custody of the children.
(3.) The opposite parties no.2 and 3 have filed their counter-affidavit denying the allegations made in the writ petition and have stated that the opposite party no.2 was having cordial relation with his brother Rakesh Giri. Smt. Krishna Goswami had been continuously insisting her husband Rakesh Giri to sell his share in the village property. Rakesh Giri was not agreed to sell her landed property. In the meantime, Smt. Krishna Goswami developed relationship with one Harbansh Misra who was tenant in her house and both of them killed Rakesh Giri so that they may grab the property of Rakesh Giri. The matter was reported to the police and the FIR was lodged against Smt. Krishna Goswami as well as Harbansh Misra and both of them were arrested by the police. They are now facing trial for the offence of murder of Rakesh Giri. In these circumstances, it will not be in the interest of justice to give the custody of minor children to Smt. Krishna Goswami who is an accused of killing her own husband.;