HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- HABEAS CORPUS WRIT PETITION No. – 1063 of 2019
Petitioner :- Om Soni (Corpus) And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Hari Narayan Singh
Counsel for Respondent :- G.A.
Hon’ble Irshad Ali,J.
Heard learned counsel for the petitioners, learned AGA for the respondent Nos.1 and 2 and Sri Shahroj Khan, learned Advocate holding brief of Sri Lavkush Kumar Bhatt, learned counsel for respondent Nos.3 and 4.
Certified copy of the order passed by District Judge, Siddharthnagar filed by learned counsel for the respondent Nos.3 and 4 may be taken on record.
This petition has been filed by the maternal grand father of the corpus for issuance of direction to produce the corpus and to hand over the custody to him.
This Court vide order dated 18.11.2019, issued notices to respondent Nos.3 and 4 and in compliance thereto, they filed their appearance.
Learned counsel for the petitioners submits that the corpus – Om Soni has illegally been detained by the respondent Nos.3 and 4. He further pointed out that father of petitioner No.1 murdered his wife i.e. mother of the corpus and he is in jail, therefore, the child is residing along with elder brother and wife of father of the detenue.
He next submitted that the family members, who are party in murder of mother of the corpus, can not look after the welfare of the child and the petitioner No.2 is the only legal person, who can properly take care of the petitioner No.1.
He further submitted that the petitioner No.2 has sufficient source of livelihood to provide better education to the petitioner No.1 to make his future bright, therefore, he is the person entitled to get custody of the child.
On the other hand, learned counsel for respondent Nos.3 and 4 submitted that the arguments advanced on behalf of learned counsel for the petitioners that the mother was murdered is fallacious. In fact, she died in an accident. He next submitted that the petitioners have approached to competent court of law for custody of the petitioner No.1 by filing a petition under Guardians and Wards Act. Thus, his submission is that simultaneous proceeding on the same cause of action is not permissible in law.
He next submitted that the family members of respondent No.3 and 4 have been falsely implicated in the criminal case and grand father, grand mother and younger brother of the husband have been released on bail and they are taking care of the petitioner No.1. He also produced the certified copy of the order in regard to pendency of the case in the court of District Judge, Siddharthnagar.
I have heard the rival contentions advanced by learned counsel for the parties and perused the material on record.
On perusal, it is established that in regard to same cause of action, the petitioners have already filed a petition before the subordinate court for handing over the custody of the petitioner No.1, which is pending consideration till date.
While taking into consideration the petition filed under Article 226 of the Constitution of India in the nature of habeas corpus, it is to be seen that whether the detenue is under illegal detention against his or her consent and it is also to be considered the welfare of the detenue his/her custody is safe in hands of whose party under litigation.
On perusal of entire material on record, it is established that this petition has been filed by the maternal grand father of the petitioner No.1 and the child is residing along with elder brother of the father against whom allegation is that he murdered his wife.
The petitioner has already approached before the competent court of law, therefore, on the same cause of action another petition under Article 226 of the Constitution of India is not maintainable.
Accordingly, this petition is finally disposed of with a direction to the petitioner to move an application before the District Judge, Siddharthnagar to expedite the hearing of the case No.36/2019 filed under Guardians and Wards Act. If that be so, the same shall be considered and necessary order shall be passed to expedite the hearing of the case filed for custody of petitioner No.1.
Order Date :- 6.1.2020
Adarsh K Singh