SUMANLATA Vs. OMPRAKASH SAINI

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for issuance of a writ in the nature of Habeas Corpus against the respondent No. 1 and 2 herein directing them to produce the female child Ku. Chandra Prabha Saini, respondent No. 3 herein, before the Court, and restore her custody to the petitioner who is the mother of the said child.

(2.) THE facts of this case lie in a very narrow compass. Admittedly, the petitioner was wedded to the respondent No. 1 on 26-5-1983, according to the Hindu rites and out of their wedlock the only female child, namely, Ku. Chandra Prabha Saini, the respondent No. 3, herein, was born on 7th August. 1985. The petitioner's husband respondent No. 1 is employed as a Instructor in I. T. I. Sehore. The respondent No. 2 Raghuvir Prasad Saini is the father of respondent No. 1. The petitioner's allegations are that the behaviour of the respondents towards her was cruel and she was subjected to physical violence by them which forced her to leave the house of her husband and come down to live under the roof of her parents at Jabalpur. It has been alleged that while leaving the house of her husband, she was not allowed by the respondents to take her child Ku. Chandra Prabha, respondent No. 3 with her. The petitioner's father Asha Ram approached the respondents sometimes in the month of December, to fetch the said child but the respondents declined to give him the custody of the child and hence this petition. It has been further alleged that the minor child is in the illegal custody of the respondent No. 2, the father of respondent No. 1, who is an oldman of 65 years and, therefore, it cannot be said that the child is being properly looked after. It has also been asserted by the petitioner that the welfare, protection and interest of the child demands that she should be in the proper care of the mother as one can have a better care of the minor child than the mother and, therefore, she is entitled for the custody of her child who at the time of petition was aged about 2 and half years and now 3 years old.

(3.) THE respondents No. 1 and 2 have countered the aforesaid allegations. They have, in their common return, inter alia, denied the allegation of rough treatment. They have come forward with the statement that the petitioner is the only child of her parents and she did not relish living with her husband; but had the fancy to go and live with her parents. Receiving encouragement from her parents the petitioner herself left the roof of her husband and inspite of the registence by the respondents she went away to reside with her parents at Jabalpur, little realising that her own daughter, the child in question, was one year old needed the breast feeding, care and protection of her natural mother, However, the petitioner No. 1 and her mother maintained and brought up the child who lives with her father, the petitioner No. 1 and her grand mother happily with all possible comforts. The respondents have asserted in their return that the petitioner is educated only upto Class VIII and is incapable of earning anything but has to depend on her old parents who are themselves not very affluent persons. On the other hand the respondent No. 1 father of the child is and Instructor in I. T. I. at Sehore and he is in a far better position to maintain, educate and bring up the child in much better way than the petitioner or her parents and thus the interest of the child, which is paramount consideration, would be better served if she is allowed to remain in the custody of her father, the respondent No. 1.