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Partha Pratim Mahanta vs The State Of Assam And 10 Ors on 16 July, 2021

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Page No.# 1/29

GAHC010095652021

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : W.P.(Crl.)/5/2021

PARTHA PRATIM MAHANTA
S/O LATE DR. KHAGEN CHANDRA MAHANTA
RESIDENT OF HOUSE NO. 31, SURVEY SANMOY PATH, GUWAHATI 781028

VERSUS

THE STATE OF ASSAM AND 10 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPARTMENT OF HOME, DISPUR GUWAHATI 06

2:THE COMMISSIONER OF POLICE
ASSAM
ASSAM POLICE HEADQUARTERS
ULUBARI
GUWAHATI 781007

3:THE SUPERINTENDENT OF POLICE KAMRUP (M)
O/O THE SUPTD. OF POLICE
KAMRUP M ASSAM

4:THE OFFICER IN CHARGE
DISPUR POLICE STATION
DISPUR
KAMRUP M ASSAM

5:SRI BIPIN PATOWAY
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

6:SMTI JAYMATI PATOWARY
Page No.# 2/29

RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

7:SMTI KALPANA PATOWARY
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

8:PARVEZ KHAN
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

9:SMTI GEETALI KHANIKAR
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

10:SMTI MEGHALI PATOWARY
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781006

11:RAJDEEP KHANIKAR
RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 78100

Advocate for the Petitioner : MR. A K BHUYAN

Advocate for the Respondent : GA, ASSAM

Linked Case : I.A.(Crl.)/281/2021

JAYMATI PATPWARY
W/O SHRI BIPIN PATOWARY
Page No.# 3/29

RESIDENT OF HOUSE NO. 5 . MADHUBAN PATH
NEAR BJP OFFICE
HENGRABARI
GUWAHATI 781036

VERSUS

PARTHA PRATIM MAHANTA AND 10 ORS
S/O LATE DR. KHAGEN CHANDRA MAHANTA RESIDENT OF HOUSE NO. 31
SURVEY SANMOY PATH
GUWAHATI 781028

2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
DEPARTMENT OF HOME
DISPUR GUWAHATI 06
3:THE COMMISSIONER OF POLICE
ASSAM
ASSAM POLICE HEADQUARTERS ULUBARI
GUWAHATI-781007
4:THE SUPERINTENDENT OF POLICE
KAMRUP (M)
O/O THE SUPERINTENDENT OF POLICE
KAMRUP M ASSAM
5:THE OFFICER IN CHARGE
DISPUR P.S. DISPUR
GUWAHATI-781006
ASSAM
6:BIPIN PATOWARY
R/O HOUSE NO. 5 MADHUBAN PATH
NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
7:KALPANA PATOWARY
R/O HOUSE NO. 5 MADHUBAN PATH
NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
8:PARVEZ KHAN
R/O HOUSE NO. 5 MADHUBAN PATH
NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
9:MEGHALI PATOWARY
R/O HOUSE NO. 5 MADHUBAN PATH
NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
10:GEETALI KHANIKAR
R/O HOUSE NO. 5 MADHUBAN PATH
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NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
11:RAJDEEP KHANIKAR
R/O HOUSE NO. 5 MADHUBAN PATH
NEAR BJP OFFICE HENGRABARI
GUWAHATI-781036
————

Advocate for : MR. B D DEKA
Advocate for : MR. A K BHUYAN appearing for PARTHA PRATIM MAHANTA
AND 10 ORS

BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA

For the petitioner : Mr. A. Bhuyan, Advocate
For State respondent Nos.1 to 4 : Mr. D. Nath, Sr. Govt. Advocate
For respondent No.6 : Mr. K. Goswami, Advocate
Date of hearing : 12.07.2021
Date of judgment : 16.07.2021

JUDGMENT AND ORDER

(CAV)

Heard Mr. A. Bhuyan, learned counsel for the writ petitioner, who is
arrayed as opposite party in the interlocutory application. Also heard Mr. K.
Goswami, learned counsel for the respondent no.6, who is the applicant in the
interlocutory application. Mr. D. Nath, learned Senior Government Advocate,
appearing for respondent nos. 1 to 4, who are arrayed as proforma opposite
party nos. 2 to 5 are present. None appears for respondent nos. 5 and 7 to 11
despite service of notice by dasti mode.

2) It may be mentioned that for the sake of convenience, the
parties are referred to hereinafter as per their respective status as petitioner
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and/or respondents in the writ petition.

3) The writ petition is in the nature of habeas corpus wherein an
interim order was passed on 24.06.2021, which was modified on 30.06.2021
and the interlocutory application has been filed by the respondent no. 6 for
vacating the interlocutory application. At the outset, it may be mentioned that at
the conclusion of the hearing of the interlocutory application on 12.07.2021, the
learned counsel appearing in this matter are ad idem that as the guardianship
matter is fixed before the Court of Principal Judge, Family Court No.II.,
Guwahati, while disposing of the said interlocutory application, the writ petition
itself may be disposed of as common facts are involved. Accordingly, with the
consent of the appearing learned counsel, the writ petition as well as the
connected interlocutory application are both being disposed of by this common
judgment and order. The name of the minor girl child is not disclosed in this
order and she is referred to as ‘Z’. The petitioner is referred to as ‘A’ and the
mother of the minor child (since deceased) is referred to as ‘B’. It may be
mentioned that the respondent no. 5 is the husband of respondent no.6 and
father of B. The respondent no. 7, 9 and 10 are the other three daughters of
respondent nos. 5 and 6 and the respondent nos. 8 and 11 are the son- in-laws
of respondent nos. 5 and 6.

4) Perused (i) the writ petition, (ii) affidavit of service filed on
09.07.2021, disclosing that notice by dasti mode upon respondent nos. 5 to 11
were received by the respondent no.6, (iii) additional affidavit filed by the
petitioner, (iv) interlocutory application, affidavit-in- opposition filed by petitioner
in the interlocutory application, (v) requisition dated 28.06.2021 by O/c., Dispur
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PS to the Chairperson, CWC for safe custody of Z, (vi), complaint dated
29.06.2021 by the petitioner before Commissioner of Police, Guwahati, and (vii)
report by O/c., Dispur P.S. to the learned Senior Govt. Advocate vide letter dated
29.06.2021. Certain more documents produced in course of hearing by the
learned counsel for the petitioner and respondent no.6 are not made part of
record as they are not supported by any affidavit.

Objection by the learned counsel for the petitioner as to appearance
of the learned counsel holding brief for respondent no.6:

5) It is unfortunate that such an objection has been raised merely
because the learned counsel for the respondent no.6 also happens to be the
learned Additional Senior Government Advocate for the State of Assam. It would
suffice for the purpose of this order that in the interlocutory application filed by
the respondent no.6, the State of Assam and its officials are arrayed as
proforma opposite parties, as such, the Court is unable to accept that there
would be any clash of interest between the respondent no. 1 to 4 with the
respondent no.6 for whom brief is being held by the learned counsel. Therefore,
the Court had permitted the learned counsel for the respondent no. 6 to address
the Court in respect of the brief he is holding as there appeared to be no clash
of interest of respondent nos. 1 to 4 and respondent no.6. In this regard, it may
be stated that in order to demonstrate existence of malice, collusion and
connivance, the concerned official of the State Government is required to be put
to notice in his individual capacity. But in the instant case the concerned
individuals holding such office have not been arrayed by name, but they appear
in official capacity. No argument was advanced to demonstrate and/or to show
that an office can also connive with private individuals.

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Brief background facts:

6) The petitioner A is the natural father of Z, who was born on
23.08.2012 out of his wedlock with B, the daughter of respondent no.6. The
marriage of A and B was solemnized on 09.03.2011. Thereafter, B had died at
her matrimonial home in Bengaluru on 03.09.2019. The case projected by A is
that after the death of B, post-mortem was conducted on the dead body and
the final opinion as to cause of death is attributed to acute coronary
insufficiency as a result of blockage of the coronary arteries by atheromatous
plaque (natural death). By annexing copies of air tickets in his additional
affidavit, the petitioner projects that he had purchased air-tickets for the
transportation of the dead body of B from Bengaluru to Guwahati for cremation
and other last rites and also for his own travel, travel of Z and the respondent
nos. 8, 10 and 11 who had come to Bengaluru after the petitioner reported
them about the sudden death of B. The dead body was brought to Guwahati on
04.09.2019 and was cremated on the same date. After cremation, Z then went
to stay in the house of respondent no. 6 and returned back to the house of the
petitioner after 3 days. The petitioner claims that none of the respondent nos. 5
to 11 attended the shradha ceremony of B held on 14.09.2019 in the house of
A. After completion of the last rites, the petitioner claims to have dropped Z at
the house of respondent no. 6 on 20.09.2019 and that he had booked tickets for
his and Z’s travel to Bengaluru on 29.09.2019.

7) According to the petitioner, the turn of events began from
20.09.2019. It is projected that on 20.09.2019, while the petitioner was at
Guwahati, the respondent no.10 had gone from Guwahati to Bengaluru and
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lodged an FIR against the petitioner, projecting to have murdered B, but the
concerned police officer of Konanakunte P.S. had submitted a final report

bearing no. 21146/19 dated 20.09.2019 before the Court of 2 nd Addl. CMM,
Bangalore City, exonerating the petitioner. Thus, it is projected that having failed
in their attempt, when on 28.09.2019, the petitioner had visited the house of
respondent no.6 to bring back Z as they were slated to travel to Bengaluru on
29.09.2019, but his phone was snatched away and he was assaulted by
respondent nos. 7, 8 and 9. The petitioner filed an FIR on 28.09.2019 before the
Dispur P.S. for recovering his daughter Z and his phone, which was registered as
Dispur P.S. Case No. 2982/2019 under
sections 325, 379, 366A and 34 IPC. The
respondent no. 6 had also filed an FIR against the petitioner, which was
registered as Dispur P.S. Case No. 2979/2019, alleging therein that Z did not
want to go with the petitioner and that the petitioner had assaulted her younger
daughter and clothes were torn and that the petitioner had left the house after
threatening them.

8) On 30.09.2019, the petitioner had approached the Assam State
Child Rights Commission (ASCRC for short) seeking help in recovering Z. The
Commissioner, ASCRC had directed the Commissioner of Police, Guwahati to
lodge a case against the accused for forcefully and illegally confining the
daughter of petitioner and to rescue the child and return to her biological father
and to report within 24 (twenty four) hours. In the meanwhile, the respondent
no.6 had filed a guardianship case before the Principal Judge, Family Court
No.II, Kamrup (M), Guwahati, which was registered as Misc.(G) Case No.
161/2019. In the said application, the petitioner had filed a petition bearing no.
28/2021 under
Section 12 of the Guardians and Wards Act, 1890 to visit, keep
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and meet Z. The said learned Court in its order dated 09.03.2021, by referring
to the brief with Z, directed the respondent no. 6 to hand over Z to the
petitioner on every Saturday evening at 4.00 p.m., who would take Z to his
house and he will bring her back to the house of respondent no. 6 on the
evening of every Sunday at 6.00 p.m. It was also provided that in the afternoon
of every Saturday and on Sunday, if Z has any extra-curricular classes, the
petitioner would take here there, until further order. Accordingly, petition no.
28/2021 was disposed of. The case was fixed on 22.04.2021 for evidence of the
respondent no.6. On 10.05.2021, while Z was in the house of the petitioner, as
the area was declared containment zone, the petitioner informed the family of
respondent no.6 that he would take back Z to their house as soon as the
containment is lifted. However, the respondent no.6 along with respondent nos.
7, 9, 10 and 11 came with police and took away Z. The petitioner claims that on
13.03.2021 and 20.03.2021, the respondent no.6 did not hand over Z to him.
Accordingly, the petitioner had lodged an FIR with Dispur P.S. on 10.05.2021.
Again by filing another FIR on 05.06.2021 before Dispur P.S. it was projected
that the respondent no.6 had not handed over Z to the petitioner on
15.05.2021, 22.05.2021, 29.05.2021 and 05.06.2021 and the police was
requested to take action as per order dated 09.03.2021.

9) The respondent no.6 projects in her interlocutory application
that while Z was staying with them, the respondent nos. 5 to 11 saw some
behavioral changes in her and she recounted instances of domestic violence
meted out by A to B and an FIR was lodged with police which was registered as
Konanakunte PS Case No. 260/2019 under Sec.498A
IPC. It is projected that Z
had expressed her reluctance to stay with A and when Z came to know that A
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was intending to take her to Bengaluru, Z begged before the respondent nos. 6
to 11 to somehow prevent relocation from Guwahati and under such
circumstances the respondent no. 6 had approached the Family Court seeking
custody of Z, which was registered as Misc. (G) Case No. 161/2019. It is
projected that on 28.09.2019, when A tried to take Z, she offered stiff
resistance and urged upon the respondent no. 6 to come to her rescue.
Accordingly, A created a ruckus and there was minor alteration and it is claimed
that with the intervention of the respondent no. 6, the attempt of A was foiled.
Thereafter, FIR was lodged by respondent no. 6 on 28.09.2019, which was
registered as Dispur PS Case No. 2979/19 and the FIR lodged by the petitioner
was registered as Dispur P.S. Case No. 2982/19. Thereafter, on 01.10.2019,
personnel from Child Line Services had visited the house of the respondent no.
6 to rescue Z, but after interacting with Z, they left and a report dated
04.10.2019 was submitted before the Chairperson/ Members, CWC. On
03.10.2019, Z was produced before CWC. As per order dated 03.10.2019 by
CWC, Z wanted to stay with respondent no. 6. However, as respondent no. 6 did
not want Z to be in children’s home, she had given consent that Z is kept in
temporary custody of A. While the Counselor was directed to submit report on
11.10.2019, A was directed to produce Z on 14.10.2019. However, at about 6.45
p.m., when Z was to be handed over to A, the child raised hue and cry and
refused to go with A. Accordingly, the Programming Officer, State Child
Protection Society present in office of CWC contacted the Member, CWC over
phone, who directed that Z be handed over to maternal grandparents and it was
directed that Z be again produced on the following day. However, Z suffered
from dehydration, fever, body ache, pain in abdomen and had to be hospitalized
and by order dated 04.10.2019, the CWC had extended temporary custody of Z
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till 15.10.2019. Thereafter, on an application filed by A to meet Z, the CWC by
order dated 10.10.2019 decided to allow A to visit Z in the presence of
respondent no.6, allowing both sides to interact over phone and decide the
place of visit and to report to CWC on 15.10.2019. Thereafter, by order dated
16.10.2019, taking note of the fact that guardianship case was pending before
the Family Court, decided that custody of Z will remain as it is (i.e. with
respondent no.6) till the final verdict of Principal Judge, Family Court, Kamrup
(M). Then on 31.10.2019, another FIR was lodged by respondent no. 6 before
Dispur P.S. that the petitioner tried to forcibly drag out Z and leveled other
allegations.

10) Thereafter, by filing an interlocutory application under Section 12
of the Guardians and
Wards Act, 1890 to visit, keep and meet Z, inter alia, with
prayer that the petitioner be allowed to bring his daughter and keep her at his
residence from the evening of Friday to Sunday evening every week. The said
prayer was considered and the learned Principal Judge, Family Court No. II,
Kamrup (M), Guwahati, found the prayer to be justified and already indicated in
para-8 above, by order dated 09.03.2021, direction was issued to the
respondent no. 6 to hand over Z to A on Saturday evening at 4.00 p.m., who
would take Z to his house and he will bring her back to the house of respondent
no. 6 on the evening of every Sunday at 6.00 p.m. It was also provided that in
the afternoon of every Saturday and on Sunday, if Z has any extra-curricular
classes, the petitioner would take here there, until further order. This was
followed by FIR dated 10.05.2021 by respondent no.6 as narrated herein
before.

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11) It is also projected by respondent no. 6 that the petition filed by
the petitioner for quashing the FIR, registered as Dispur PS Case No. 2979/19,
but the said Crl. Pet. No. 1362/2019 was dismissed by this Court by order dated
03.03.2021.

12) By filing affidavit-in-opposition in connection with the
interlocutory application, the petitioner has denied the allegations made against
him and has stated to the effect that taking advantage of Z staying with her, the
respondent no.6 had seized the opportunity to poison the mind of the minor
child against the petitioner by projecting him as murderer of B contrary to the
finding in post mortem report and final report submitted by the police.

13) It may be stated that many other minor incidents and
explanations have been narrated by both sides, but in the considered opinion of
the Court, for the purpose of this order, it is not necessary to reproduce all the
pleadings.

Submissions before the Court:

14) The gist of submissions made by the learned counsel for the
petitioner is that he had brought Z to Guwahati and allowed her to be with
respondent no.6. Initially there was no complaint against the petitioner, but
when time came for the petitioner and Z to leave Guwahati to Bengaluru, the
trouble for A had started. It is submitted that the petitioner had moved the
competent authority such as ASCRC, CWC, Police and Court and had obtained
visitation rights to Z. However, by one ploy or the other, the respondent no.6
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has been able to prevent the petitioner from visitation rights granted by the
Family Court. Accordingly, it is submitted that the writ of habeas corpus was
maintainable as the respondent no. 6 had failed to comply with the Court order.
It is submitted that the fragile mind of Z is being poisoned against the petitioner,
who is the natural father of Z and is legally entitled to have the custody of the
minor child. It is submitted that as the respondent no.6 is residing with her son-
in-law and two daughters, there is no way that they will be able to provide
better child-care, love and affection or assure all round welfare of Z in her best
interest. It is submitted that in view of his house being declared a containment
zone because of Covid-19 pandemic, the petitioner had informed the respondent
no.6 that he would bring Z back to respondent no.6 after containment zone was
lifted, but by disregarding the containment zone, the respondent no. 6 had
brought police and forcibly took away Z. While making extensive submissions,
the learned counsel for the petitioner has placed reliance on the following cases,
viz., (i) Tejaswini Gaud Ors. Vs. Shekhar Jagdish Prasad Tewari Ors., (2019)
7 SCC 42, (ii) Smt. Madhavi Rathore Vs. State of Madhya Pradesh Ors., WP
No. 10370/2020 decided on 05.09.2020 and reported in (2020) 0 Supreme(MP)
1117: (2020) 4 CivCC 56.

15) The learned counsel for the respondent no. 6 has submitted that
there is no dispute that Z has expressed that she loves A. It is also submitted
that he does not oppose that the petitioner is entitled to visitation right, but
when Z had expressed her reluctance to stay in the night with A, and
continuously refused to go with A before the police as well as before CWC, she
stayed with respondent no.6. Moreover, it is submitted that by virtue of order
dated 09.03.2021, passed by the learned Family Court, the respondent no. 6 is
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legally entitled to have custody of Z and as of date, the petitioner only has
visitation right, it cannot be said that the respondent no. 6 is illegally detaining
Z. It is submitted that order dated 03.10.2019 would disclose that only to
prevent Z to be taken to Children’s Home, the respondent no. 6 had agreed to
allow A to keep Z at his home temporarily. Accordingly, it is submitted that the
respondent no. 6 is aggrieved because by virtue of the orders passed by this
Court, Z has been kept in Assam Sishu Kalyan Sadan Children’s Home, where
she is not accustomed and such situation has caused disruption to her studies
and extra-curricular activities. In support of his extensive submissions, the
learned counsel for the respondent no. 6 has relied on the cases of Nil Ratan
Kundu Anr. Vs. Abhijit Kundu, (2008) 9 SCC 413.

Analysis and decision:

16) From the nature of submissions made, the questions which arise
for determination in this case is as to whether this is an appropriate case for
issuing writ of habeas corpus and as to what extent any interference is called
for in this writ petition.

17) It is seen that the respondent no. 6 has filed a guardianship case,
which has been registered and numbered as Misc. (G) Case No. 161/2019 and
the said case is pending for disposal before the Principal Judge, Family Court
No.II, Kamrup (M), Guwahati. In connection with the said proceeding, the said
learned Court had passed an order dated 09.03.2021 on petition no. 28/2021
filed by the petitioner. The operative part of the said order is extracted below:-

“It is an admitted fact that the respondent is the natural guardian of the minor
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girl being her father. Again, on a brief interview held by this Court with the minor
girl on 11.02.2021, she revealed that she loves both her father as well as her
grandmother i.e. the petitioner. Now, as this case pertains to guardianship and
custody of the minor girl, therefore, the Court is to look into the paramount
welfare of the child and hence, I find that at this stage till the case is decided on
merit, more interaction between the father and the daughter is necessary for
healthy growth and welfare of the minor. Moreover, I find that irreparable injury
will be caused to the father if he is denied the right of temporary custody of the
minor as he is the natural guardian of the minor.

In view of above, I find that it would be justified to allow the prayer of the
respondent and hence, this Court directs the petitioner to handover the minor girl,
Z (name withheld) to her father i.e. the respondent, on every Saturday evening at
4 p.m., who will take his daughter to his house and he will again bring the minor
back to her grandmother’s house/ petitioner’s house on the evening of every
Sunday at 6 p.m. During the afternoon of Saturday and on Sunday, the respondent
shall take the minor to all the extra curriculum classes, if she has any such classes
during those period, until further orders.

With the above observation, petition no. 28/2021 stands disposed of.

Fixed 22.04.2021 for evidence of the petitioner.”

18) The Court does not expresses any opinion as to whether there is
truth in the allegations that the petitioner had violated containment zone order
and brought Z to his house which was in containment zone, but it is also not in
dispute that respondent no. 8 took back Z on 10.05.2021 under similar adverse
circumstances of the house of petitioner being in containment zone.
Nonetheless, there is no allegations that after order dated 09.03.2021, the
petitioner did not return Z back to the house of the respondent no. 6 till the
fateful day of 10.05.2021. In the FIR dated 10.05.2021 lodged by the petitioner
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before Dispur P.S., it has been alleged that the respondent no. 6 did not hand
over Z to him in due time and that in the FIR dated 05.06.2021, the petitioner
has alleged that Z was not handed over to him on 15.05.2021, 22.05.2021,
29.05.2021 and 05.06.2021. Thus, it is apparent that for whatever good reasons
the respondent no. 6 might have, but she had failed to adhere to the order
dated 09.03.2021, passed by the Principal Judge, Family Court No.II, Kamrup
(M), Guwahati without obtaining leave of the said learned Court.

19) Be that as it may, it is seen that in the office of D.C.P.U. on
03.10.2019, Z had given her statement before the Legal cum Probation Officer,
DCPU, Kamrup (M), Guwahati that she does not want to go with A. Moreover, in
the report dated 04.10.2019 (Annexure-3 to the IA (Crl.) 281/2021), submitted
to the Chairperson/ Members, CWC, Kamrup (M), the Legal cum Probation
Officer, DCPU, Kamrup (M) had stated under the caption “The girl’s statement”
that “I took the statement of Z (name omitted) as where she lived, where she
studied, etc. asked about her mother, she said that she was very good and
when asked about her father, she said she does not want to go with her father
because she could not see again what happened with her mother. Last she
stated clearly that she won’t go with her father.” Thereafter, the said Legal cum
Probation Officer opined that “After her statement it seems to believe that she
should not be rescue yet and she should remain with her family. So, we did not
rescue her today and let her stay with her relatives. But we told her relatives
that they must come to ASCPCR office for Z’s (name omitted) statement .” It is
also seen that as per the report of the Officer-in-Charge of Dispur P.S., on
28.06.2021, when Z was being taken by A, she created noisy situation outside
the police station by crying that she would never go with A, for which A failed to
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take her home and a scuffle took place between A and respondent nos. 5, 6 and
7 in the presence of police and FIR by both sides was registered. In view of the
tense situation, the police decided to send Z to Assam Sishu Kalyan Sadan,
Jalukbari under CWC.

20) It may be mentioned that at the beginning of the hearing, the
Court had asked the learned counsel for the petitioner and respondent no.6
whether they had any reservation if the Court interacted with Z. While the
learned counsel for the respondent no.6 readily agreed, the stand of the learned
counsel for the petitioner was that the fragile mind of Z had been sufficiently
poisoned and therefore, she must undergo some counseling before she can
speak freely. Accordingly, apprehension was expressed that if any interaction is
made with Z at this moment, she is likely to make tutored statement against the
petitioner.

21) It would be now appropriate to look into the cases cited by the
learned counsel for both sides.

a. In the case of Madhavi Rathore (supra), the factual matrix of the case
is that respondent no.6 of the said case had locked the petitioner of
the said case in a room and took away the 15 month old minor male
child with him. Although the plea of the father was that mother was
mentally unsound, the High Court of Madhya Pradesh had arrived at a
conclusion that the child was 15 months old and that nothing adverse
had been brought on record that the parents of the mother with whom
she is living are not capable of maintaining the petitioner- wife and the
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child and thus, in view of Section 6 of the Hindu Minority and
Guardianship Act, 1956 ordered that the child had to be given in the
custody of the mother. Thus, what is noticeable in the said case the
father (respondent no.6) had brought the minor child from the lawful
custody of the petitioner (mother) and that none of the parties had
approached the competent Court having jurisdiction to decide on the
issue of guardianship and accordingly, the High Court had granted
liberty to the respondent nos. 6 to 8 to proceed in accordance with law
for seeking custody of the child.

b. In the case of Tejaswini (supra), the factual matrix is mentioned in
para-3 of the said judgment. It would be appropriate to quote para- 3,
10, 18, 34, to 36:-

“3. Brief facts of the case are that marriage of respondent No.1 was
solemnized with Zelam on 28.05.2006. During the fifth month of her
pregnancy i.e. in May 2017, Zelam was detected with breast cancer.
Respondent No.1 and Zelam were blessed with a girl child named Shikha on
14-08-2017. While Zelam was undergoing treatment, child Shikha was with
her father respondent No.1 till November, 2017. Unfortunately, on
29.11.2017, respondent No. 1 was suddenly hospitalised and he was
diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis. While he
was undergoing treatment, appellant No.1-Tejaswini Gaud – one of the two
sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who is the husband of
Tejaswini, took Zelam along with Shikha to their residence at Mahim, Mumbai
for continuation of the treatment. Later, in June 2018, Zelam was shifted to
her paternal home along with Shikha in Pune i.e. residence of appellant No.3-

Samir Pardeshi, brother of Zelam. In July 2018, they were again shifted to
the house of appellant No.1 in Mumbai. On 17.10.2018, Zelam succumbed to
her illness. Child Shikha continued to be in the custody of the appellants in
Page No.# 19/29

Pune at the residence of appellant No.3 till 17.11.2018. Respondent No.1-
father was denied the custody of child and on 17.11.2018, he gave a
complaint to Dattawadi Police Station, Pune. Thereafter, respondent No.1-
father approached the High Court by filing a writ petition seeking custody of
minor child Shikha. Respondent No.1-father is a post-graduate in
Management and is working as a Principal Consultant with Wipro Limited.

10. Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts
as to who can be said to be a natural guardian. As per
Section 6 of the Act,
natural guardian of a Hindu Minor in respect of the minor’s person as well as
in respect of the minor’s property (excluding his or her undivided interest in
joint family property) is the father, in the case of a boy or an unmarried girl
and after him, the mother. Father continues to be a natural guardian, unless
he has ceased to be a Hindu or renounced the world.
Section 13 of the Act
deals with the welfare of a minor.
Section 13 stipulates that in the
appointment or declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
Section
13(2) stipulates that no person shall be entitled to the guardianship by virtue
of the provisions of the Act if the court is of opinion that his or her
guardianship will not be for the welfare of the minor

13. Writ of habeas corpus is a prerogative process for securing the
liberty of the subject by affording an effective means of immediate release
from an illegal or improper detention. The writ also extends its influence to
restore the custody of a minor to his guardian when wrongfully deprived of it.
The detention of a minor by a person who is not entitled to his legal custody
is treated as equivalent to illegal detention for the purpose of granting writ,
directing custody of the minor child. For restoration of the custody of a minor
from a person who according to the personal law, is not his legal or natural
guardian, in appropriate cases, the writ court has jurisdiction.

18. Habeas corpus proceedings is not to justify or examine the legality
of the custody. Habeas corpus proceedings is a medium through which the
Page No.# 20/29

custody of the child is addressed to the discretion of the court. Habeas
corpus is a prerogative writ which is an extraordinary remedy and the writ is
issued where in the circumstances of the particular case, ordinary remedy
provided by the law is either not available or is ineffective; otherwise a writ
will not be issued. In child custody matters, the power of the High Court in
granting the writ is qualified only in cases where the detention of a minor by
a person who is not entitled to his legal custody. In view of the
pronouncement on the issue in question by the Supreme Court and the High
Courts, in our view, in child custody matters, the writ of habeas corpus is
maintainable where it is proved that the detention of a minor child by a
parent or others was illegal and without any authority of law.

34. The welfare of the child has to be determined owing to the facts
and circumstances of each case and the court cannot take a pedantic
approach. In the present case, the first respondent has neither abandoned
the child nor has deprived the child of a right to his love and affection. The
circumstances were such that due to illness of the parents, the appellants
had to take care of the child for some time. Merely because, the appellants
being the relatives took care of the child for some time, they cannot retain
the custody of the child. It is not the case of the appellants that the first
respondent is unfit to take care of the child except contending that he has no
female support to take care of the child. The first respondent is fully
recovered from his illness and is now healthy and having the support of his
mother and is able to take care of the child.

35. The appellants submit that handing over of the child to the first
respondent would adversely affect her and that the custody can be handed
over after a few years. The child is only 1½ years old and the child was with
the father for about four months after her birth. If no custody is granted to
the first respondent, the court would be depriving both the child and the
father of each other’s love and affection to which they are entitled. As the
child is in tender age i.e. 1½ years, her choice cannot be ascertained at this
Page No.# 21/29

stage. With the passage of time, she might develop more bonding with the
appellants and after some time, she may be reluctant to go to her father in
which case, the first respondent might be completely deprived of her child’s
love and affection. Keeping in view the welfare of the child and the right of
the father to have her custody and after consideration of all the facts and
circumstances of the case, we find that the High Court was right in holding
that the welfare of the child will be best served by handing over the custody
of the child to the first respondent.

36. Taking away the child from the custody of the appellants and
handing over the custody of the child to the first respondent might cause
some problem initially; but, in our view, that will be neutralized with the
passage of time. However, till the child is settled down in the atmosphere of
the first respondent-father’s house, the appellants No.2 and 3 shall have
access to the child initially for a period of three months for the entire day i.e.
08.00 AM to 06.00 PM at the residence of the first respondent. The first
respondent shall ensure the comfort of appellants No.2 and 3 during such
time of their stay in his house. After three months, the appellants No.2 and 3
shall visit the child at the first respondent’s house from 10.00 AM to 04.00 PM
on Saturdays and Sundays. After the child completes four years, the
appellants No.2 and 3 are permitted to take the child on every Saturday and
Sunday from the residence of the father from 11.00 AM to 05.00 PM and
shall hand over the custody of the child back to the first respondent-father
before 05.00 PM. For any further modification of the visitation rights, either
parties are at liberty to approach the High Court.”

c. In the case of Nil Ratan Kundu (supra), the allegation was that in the
night of 09.04.2004, the respondent and his mother had brutally
assaulted his wife and brought to hospital, where she was declared
dead. On 18.04.2004, the minor child was handed over to the
Page No.# 22/29

appellants. On being enlarged on bail, the respondent applied for
custody under Guardians and
Wards Act, 1890 and the trial Court had
granted custody of the child to the respondent, who was the natural
guardian. The Hon’ble Judges of the Supreme Court of India had
interacted with the child, who unequivocally refused to go with the
respondent and was very happy with his maternal grandparents.
Accordingly, under the facts of the said case it was held that it was not
proper to hand over the child to the respondent and the appeal was
allowed. It is seen that this case was not related to writ of habeas
corpus, but the case arose out of application for guardianship, and the
decision of the trial Court was assailed before the High Court and the
matter went upto the Supreme Court of India in connection with civil
appeal. Nonetheless, in para-52 of the said judgment, it has been
observed in connection with principles governing custody of minor
children that “If minor is old enough to form an intelligible preference
or judgment, the court must consider such preference as well, though
the final decision should rest with the court as to what is conducive to
the welfare of the minor.”

22) Thus, from the cases cited above, there is no doubt that writ of
habeas corpus would lie if the child is removed from lawful custody.
Nonetheless, it is also well settled that the Court has discretion as to whether
writ jurisdiction is to be exercised under the facts and circumstances of a
particular case. Therefore, it is to be examined whether this is a fit and proper
case where the Court should exercise writ jurisdiction.

Page No.# 23/29

23) As indicated herein before, Z has given some statement before
the DCPU and before the Police. No opinion is rendered as to whether there is
truth in the allegations of A that Z had possibly been tutored, these are required
to be determined by the learned Family Court which is in seisin of the issue
relating to guardianship. Any attempt by this Court to form any opinion on any
aspect which is required to be determined by the learned trial Court would
severely prejudice not only the parties, but would have the effect of pre-judging
the issue before trial and would also prejudice the learned trial Court.

24) Therefore, for the purpose of this order, the Court is inclined to
venture only to find out as to whether Z had been removed by the respondent
no. 5 to 11 from lawful custody of A. The answer is a categorical ‘no’. It is seen
that by order dated 10.10.2019, the CWC, Kamrup (M) had allowed the
petitioner visitation right to meet Z. Thereafter, by order dated 16.10.2019, the
CWC, Kamrup (M) had decided that the custody of Z will remain as it is till the
final verdict of the Family Court. Later on, as already indicated herein before,
the learned Principal Judge, Family Court No.II, Kamrup (M), by order dated
09.03.2021 in Misc. (G) Case No. 161/2019, held that denial of temporary
custody of Z to A would cause irreparable injury to A, as he is the natural
guardian of the minor, and it was ordered that the respondent no. 6 to hand
over Z to the petitioner on every Saturday evening at 4.00 p.m., who would take
Z to his house and he will bring her back to the house of respondent no. 6 on
the evening of every Sunday at 6.00 p.m. It was also provided that in the
afternoon of every Saturday and on Sunday, if Z has any extra-curricular
classes, the petitioner would take here there, until further order. Accordingly,
petition no. 28/2021 was disposed of. It is noticed that it is not the case of the
Page No.# 24/29

respondent no.6 that the said order has been modified.

25) Therefore, it is seen in this case that the temporary custody of Z
with A is found to have been denied by the respondent nos. 5 to 11, jointly and
severally, the same prima facie is found to be not in consonance with the order
dated 09.03.2021 passed by the learned Family Court. However, the materials
on record discloses that the competent authorities including the CWC and police
from Dispur P.S. could not hand over Z to A in view of strong opposition from Z.
The Court hastens to add that this observation may not be construed by the
learned trial Court to be a finding of this Court, but this has been mentioned for
the purpose of this order only.

26) In the case of Veena Kapoor Vs. Varinder Kumar Kapoor, (1981)
3 SCC 92, the Supreme Court of India had observed that – ” It is difficult for us
in this habeas corpus petition to take evidence without which the question as to
what is in the interest of the child cannot satisfactorily be determined. We,
therefore, direct that the learned District Judge, Chandigarh, will make a report

to us before 23rd of this month on the question as to whether the custody of
the child should be handed over to the petitioner-mother, taking into
consideration the interest of the minor. The learned Judge will give liberty to the
parties to adduce evidence on the question in issue. The learned District Judge
may either take up the matter himself or assign it to an Additional District
Judge, if there is any at Chandigarh.”

27) In the case of Rajesh K. Gupta Vs. Ram Gopal, (2005) 5 SCC
Page No.# 25/29

359, the Supreme Court of India had held that – ” It is well settled that in an
application seeking a writ of habeas corpus for custody of minor child, the
principal consideration for the court is to ascertain whether the custody of the
child can be said to be lawful or illegal and whether the welfare of the child
requires that the present custody should be changed and the child should be
left in the care and custody of someone else. It is equally well settled that in
case of dispute between the mother and father regarding the custody of their
child, the paramount consideration is welfare of the child and not the legal right
of either of the parties [see
Dr. (Mrs.) Veena Kapoor vs. Shri Varinder Kumar
Kapoor, (1981) 3 SCC 92 and
Syed Saleemuddin vs. Dr. Rukhsana and others
(2001) 5 SCC 247]. It is, therefore, to be examined what is in the best interest
of the child Rose Mala and whether her welfare would be better looked after if
she is given in the custody of the appellant, who is her father.”

28) In the present case in hand, as the Family Court is already in
seisin of the issue of guardianship, it would be in the interest of justice that the
necessary enquiry as to the welfare of the child be made by the said learned
Court having both competence and jurisdiction. It is well settled that in matters
concerning the custody of minor children, the paramount consideration is the
welfare of the minor and not the legal right of this or that particular party.

29) Therefore, under the peculiar facts and circumstances of this
particular case, the Court does not find it to be a fit and proper case to issue
prerogative writ of habeas corpus and to give the petitioner temporary custody
of Z. Such an order would have the effect of overriding judicial order dated
09.03.2021, passed by the Principal Judge, Family Court No.II, Kamrup (M),
Page No.# 26/29

Guwahati in connection with proceedings of Misc. (G) Case No. 161/2019, when
there is no challenge to the legality or tenability of the said order.

30) At best, this is a case wherein the respondent no. 6 may be
accused of non-compliance of the herein before referred order dated
09.03.2021, as such, it is open to the petitioner to have the order of temporary
custody dated 09.03.2021 executed by the learned Family Court. In the present
case in hand, if a writ of Habeas corpus is issued, it would amount to invoking
extraordinary writ jurisdiction of this Court to execute the order dated
09.03.2021 passed by the Family Court through orders of this Court. Therefore,
if the petitioner is aggrieved by non-compliance of the herein before referred
order dated 09.03.2021, he may be well advised to seek appropriate remedy
therefor.

Orders dated 30.06.2021 passed by the Court in this writ petition:

31) Although the prerogative writ of habeas corpus has not been
issued, but it is seen that in this case a wrong has been committed by the Court
while passing the orders dated 30.06.2021. The said wrong is required to be
rectified.

32) There is no denial that while deciding the issue of custody, the
paramount consideration is the welfare of the child, which is a principle
embedded in the provisions of Guardians and
Wards Act, 1890.

33) It is seen that as per the provisions of Section 3(xii) of the
Page No.# 27/29

Juvenile Justice (Care and Protection of Children) Act, 2015 it is provided that a
child shall be placed in institutional care as a step of last resort after making a
reasonable inquiry.

34) In the present case in hand, the Court had not considered both
the said aspects while passing the order dated 30.06.2021, thereby permitting Z
to remain in custody of Assam Sishu Kalyan Sadan under CWC till further orders
by the Principal Judge, Family Court No.II, Guwahati. Therefore, the said order
cannot be allowed to hold the field. Accordingly, the order dated 30.06.2021, in
so far as it relates to allowing Z to remain in custody of Assam Sishu Kalyan
Sadan under CWC till further orders by the Principal Judge, Family Court No.II,
Guwahati stands recalled. To the aforesaid extent the interlocutory application
filed by the respondent no.6, being I.A. (Crl.) 281/2021 stands allowed.

Order by the Court:

35) In light of the discussions above, and under the peculiar facts
and circumstances of this case, the Court passes the following orders:-

a. The Court is disinclined to issue prerogative writ of habeas corpus and
to give the petitioner temporary custody of Z. Such an order would
have the effect of overriding judicial order dated 09.03.2021, passed
by the Principal Judge, Family Court No.II, Kamrup (M), Guwahati in
connection with proceedings of Misc. (G) Case No. 161/2019, when
there is no challenge to the said order.

b. The order dated 30.06.2021, in so far as it relates to allowing Z to
remain in custody of Assam Sishu Kalyan Sadan under CWC till further
Page No.# 28/29

orders by the Principal Judge, Family Court No.II, Guwahati stands
recalled.

c. In terms of order dated 09.03.2021, passed by the learned Principal
Judge, Family Court No.II, Guwahati in Misc. (G) Case No. 161/2019,
the CWC, Kamrup (M), Guwahati and the authorities of the Assam
Sishu Kalyan Sadan under CWC would release Z into the custody of
respondent no. 6. The said learned Court shall act on the basis of
downloaded copy of this order. The order may be verified from the
website of the Court.

d. The respondent nos. 5 to 11 including respondent no. 6 are reminded
of their solemn obligation to abide by the said order dated 09.03.2021
in Misc. (G) Case No. 161/2019 to give Z to the temporary custody of
A from 4.00 p.m. of Saturday evening to bring her to his house and to
return Z into the custody of respondent no. 6 at her house on the
evening of Sunday at 6.00 p.m.

e. The Court takes notice of the submissions made by the learned
counsel for both sides that the proceedings of Misc.(G) Case No.
161/2019 is fixed on 16.07.2021 before the learned Family Court. In
this regard, taking note of the fact that custody of children is required
to be tackled with human angle, the Court is of the considered opinion
that it is necessary that A, being the biological father, has a chance to
interact with Z before the matter is finally decided by the Family Court.
The learned Principal Judge, in its discretion, may like to interact with
Z before passing any final orders, but the Court sees no point in Court
interacting with Z if A does not get any opportunity to spend quality
time with Z.

Page No.# 29/29

36) Before parting with the records, the Court is inclined to observe
that it is needless to mention that the Family Court is not powerless to take
appropriate steps as may be permitted in accordance with law if its orders have
been violated. It is clarified that the learned Principal Judge, Family Court No.II,
Guwahati shall decide Misc.(G) Case No.161/2019 without being influenced by
any observations made herein.

37) This writ petition including the connected interlocutory
application are both disposed of. The parties are left to bear their own cost.

JUDGE

Comparing Assistant

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