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Shital Kumar Jha vs The State Of Madhya Pradesh on 28 February, 2019

1 WP-28187-2018

The High Court Of Madhya Pradesh
WP-28187-2018
(SHITAL KUMAR JHA Vs THE STATE OF MADHYA PRADESH)

6
Jabalpur, Dated : 28-02-2019
Mr.P.N.Pathak, learned counsel for the petitioner.
Mr.Dilip Pandey, learned Government Advocate for the
respondent/State.

Mr.V.R.Nathan, learned counsel for the respondent no.5.

Pursuant to the order dated 18.02.2019, the corpus
Ku.Shanbhavi @ Laxmi Jha has been produced before this Court who
is 6 years of age. The undisputed facts in this case are that the
petitioner is father and thus the natural guardian of the corpus. The
respondent no.5 is maternal grandfather of the child. It is also
undisputed that the child was taken from the custody of the petitioner
on 10.08.2018 at Police Station-Bhalumada within the premises of
Police Station-Bhalumada, District-Anuppur and handed over to the

respondent no.5. It is also undisputed that since 10.08.2018 the child
has been with the respondent no.5. Besides these, there are no other
undisputed facts in this case.

The child corpus is a witness to the murder of her mother and
her aunt by her uncle. The petitioner was working at Delhi at the
material point of time. The corpus was living in a joint family along
with the parents and brother of the petitioner when the incident took
place. At the time of the incident, the parents of the petitioner are
stated to be not at home. The uncle of the corpus, the accused-Nirmal
Kumar is presently in judicial custody, the charge-sheet has been filed
against him and the charges have been framed and the case is at the

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
2 WP-28187-2018
stage of recording the evidence for prosecution. The next date of
hearing is 25.03.2019. Learned counsel for the petitioner has
submitted that the child was taken from his custody at the police
station on the basis of massive pressure and influence being brought
to bear upon him to handover the child to the grandparents. There is

no evidence with regard to the same being true but for an allegation to
that effect. Learned counsel for the respondent no.5, on the other
hand, has submitted that at this stage it is the welfare of the child that
is of paramount and one cannot go by the technicalities of law in
assessing as with whom the child interest is best served. In support of
his contention, the respondent no.5 has placed before this Court the
judgements of the Supreme Court passed in Nil Ratan Kundu and
Another Vs. Abhijit Kundu reported in (2008) 9 SCC 413. The facts
of Nil Ratan Kundu (supra) are that the respondent in that case the
Abhijit Kundu, he was accused of assaulting the mother of the
corpus which resulted in her death. He was undergoing trial for
offences under sections 498-A and 304 of IPC. During the pendency
of the case, after the respondent was enlarged on bail, he filed an
application under the Guardianship and Wards Act seeking custody of
his child. The appellants before the Supreme Court who are the
maternal grandparents of the child opposed the application on the
ground that the welfare of the child is served better while in the
custody of the grandparents as it was on the date of the application
filed by the respondent under the Guardianship and Wards Act. The
trial court, however, allowed the application and held that the
respondent was a natural guardian of the child and that the present and
future of the child would be better secured in the custody of the

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
3 WP-28187-2018
respondent-Abhijit Kundu. Ultimately, when the case came up before
the Supreme Court, the Supreme Court held in the favour of the
petitioner who were grandparents of the child on the ground that as
the father was an accused in a criminal case, it would be better to give
the custody of the child to the maternal grandparents. The second case
which has been referred to by the learned counsel for the respondent
no.5 is Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu
and another reported in 1984(3) SCC 698, in that case, there was
an order of the English Court regarding custody of the minor child
which was obtained by the mother of the child. The father of the child

brought the child back to India and a writ of habeas corpus was filed
in the High Court for production of custody of the child. The High
Court dismissed the writ petition and held in favour of the father,
who was the respondent before the Supreme Court. Therefore, the
Supreme Court held that the English Court having most contact with
the issue, held that its order was binding upon the Indian Court and
handed over the custody to the appellant-Smt. Surinder Kaur
Sandhu (supra). The third judgement referred to by the respondent
no.5 is Mausami Moitra Ganguli Vs. Jayant Ganguli reported in
(2008) 7 SCC 673, in that case, the Family Court gave custody
custody of the minor to the mother Mausami Moitra Ganguli. On
appeal by the father, the respondent before the Supreme Court, the
High Court set aside the order of the Family Court and granted
permanent custody of the child to the respondent-father and only
visitation right to the mother.

Learned counsel for the respondent no.5 has relied upon the
finding of the Supreme Court in para-19 of the judgement passed in

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
4 WP-28187-2018
the case of Mausami Moitra Ganguli (supra) in which the Supreme
Court has held while determining the question as to which parents
must have the care and control of the child, the first paramount
consideration for the interest of welfare of the child and not the right
of the parents under statute.

Learned counsel for the petitioner has referred to a judgement
of passed by the Division Bench of this Court passed in the case of
Sheo Kumar Ram Prasad Tiwari Vs. Smt. Shivranit Bai and
others reported in AIR 1966 MP189, in this case, the facts of this
case are that the father of the minor child was residing at Burhanpur
and was employed as a peon at the Tahsil Court at Burhanpur as he
was required to go back very often after his wife death, he entrusted
his minor daughter to the care of the respondents who were the
neighbors and with whom he was in family terms. When the father
asked the respondents to return the girl, they refused and so the father
on 09.04.1964 filed an application under section 25 of the
Guardianship and Wards Act for restoration of child custody to him
alleging that the respondents had not given proper education. This
Court has held once the minor is restored to the custody of the father
i.e, his rights over the minor are no doubt are subjected to the
provisions of Guardian and Wards Act.

Learned counsel for the respondent no.5 has voiced a legitimate
concern in this case. He has submitted that the child is sole eye
witness to the murder of her mother and aunt by her uncle. He further
state that the petitioner herein is real brother of the accused and filial
affection may come in the way and the child may be tutored to change
her statement before trial Court. The concern voiced is not baseless.

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
5 WP-28187-2018

The judgement which have been cited by the learned counsel for
the respondent no.5, by no stretch of imagination are applicable in the
facts and circumstances of the case. In the case at hand, the only
difference being, there was an order passed the Court of competent
jurisdiction with regard to the issue of custody and after which the
case had gone to the Supreme Court, where it has finally reversed the
order passed of the Court competent jurisdiction for the reasons
stated in that case. In the other two cases, the dispute was between
two natural guardians. Here it is stated above, the petitioner is the
natural guardian and the respondent no.5 is the maternal grandfather.
There is no finding by any court of competent jurisdiction till date, as
to whose custody the interest of the child is best served. Therefore,
the contention of the learned counsel for the respondent no.5 that the
child’s welfare in the custody of the petitioner would be jeopardize
would be completely unfounded and is rejected. The said allegations
involve intricate questions of fact which has to be tried before a
competent Court and only after recording evidence, can any court,
come to the conclusion that whether the custody of the child with the
petitioner would be against her interest. In the case cited by the
learned counsel for the respondents in each of those cases there was

an order from the court of competent jurisdiction which had gone
into the facts of those case and passed an order. In this case it is yet to
happen.

The SHO of Police Station-Bhalumada and the SDOP have
appeared in person before this Court. The SHO, Mr. Manoj Dixit has
informed this Court that the next date hearing before the trial Court is
25.03.2019 and the case is fixed for evidence on behalf of the

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
6 WP-28187-2018
prosecution.

Under the circumstances, this Court passes the following
directions:-

1. Till the next date of hearing, the child shall be kept at the
Child Welfare Home at Shahdol. The S.P or SHO is requested to
ensure that the child witness does not meet either the petitioner i.e,
the father or the respondent no.5 and be kept in the child welfare
home at Shahdol till she deposes before the trial Court on
25.03.2019.

2. The learned trial Court is requested to ensure that on
25.03.2019, that the child witness statement is recorded. It is also
requested that the case in which the corpus is to testify as a child
witness, be taken as first of case on the date. Counsel for the defence
shall cross-examine the child witness on 25.03.2019, itself and no
adjournment shall be granted.

In the event, the child cross-examination is not done on the
designated day, the child shall be sent back to the child welfare home
and not handed over to the petitioner. After the child is examined, it
shall be kept at the child home and produced before this Court on the
next date of hearing.

List this case for further orders on 27.03.2019. On that date, the
SHO of Police Station-Bhalumada shall remain present before this
Court. Further presence of the SDOP is dispensed with.

A typed copy of this order is give to the State for necessary
action.

C.C. as per rules.

(ATUL SREEDHARAN)
JUDGE

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39
7 WP-28187-2018
rk.

Digitally signed by RAVIKANT KEWAT
Date: 01/03/2019 12:04:39

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