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Smt Lalita vs State Of Raj And Ors on 13 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Habeas Corpus Petition No. 57/2018

Smt. Lalita aged about 28 years, wife of late Shri Suraj Kumar,
By Caste Jat, Resident Of Baroli Chouth Deeg District Bharatpur.
—-Petitioner
Versus
1. State Of Rajasthan Through Director General Of Police,
Rajasthan, Police Headquarters, Jaipur.
2. Superintendent Of Police, Bharatpur.
3. Station House Officer, Police Station Deeg, District
Bharatpur.
4. Smt. Beena Wife Of Shri Yadram, By Caste Jat, Resident
Of Near SP Office, Sunil Book Center Ki Gali, Mathura
Gate, Bharatpur.
5. Smt. Rekha Wife Of Shri Surendra, By-Caste Jat, Resident
Of Behind Jain Mandir, Sugreev Colony, Sewer Road,
Bharatpur.
6. Smt. Pappu Wife Of Shri Pradeep, By-Caste Jat, Resident
Of Behind ATV Factory, Near Vaishno Devi School, Ganesh
Kunj Colony, Sadar Bajar, Mathura UP
7. Yadram Son Of Shri Bhagwan Singh, B/c Jat, Resident Of
Near SP Office, Sunil Book Center Ki Gali, Mathura Gate,
Bharatpur.
8. Smt. Motni Wife Of Shri Harbhan, B/c Jat, Resident Of
Village Tamroli, Udyognagar, Bharatpur.
9. Sandeep Son Of Shri Harbhan, B/c Jat, Resident Of Village
Tamroli, Udyognagar, Bharatpur.
Accused Respondents

10. The Additional Director General Of Police, Anti Human
Trafficking Unit, Jaipur.

—-Respondent

For Petitioner(s) : Mr. Biri Singh Sinsinwar, Senior
Counsel assisted by Mr. Rajesh
Choudhary.

Mrs. Smt. Lalita, petitioner present in
person.

For Respondent(s) : Mr. B.N. Sandu, AGG.

Mr. Kesar Singh, S.I., P.S. Deeg,
(2 of 5) [HC-57/2018]

District Bharatpur, present in person.

Mrs. Beena, Respondent No. 4 and Mr.
Motni, Respondent No. 8 present in
person.

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment

13/04/2018

(Per Hon’ble Mr. Justice Mohammad Rafiq)

This habeas corpus petition has been filed by Smt.

Lalita in unusual circumstances when she was deprived of custody

of her minor son Hemant, aged 5 years. She has alleged that her

son is in illegal custody of Respondents No. 4 to 9. Respondent

No. 4 to 6 are sisters of her late husband; Respondent No. 7 and 9

are her her brothers-in-law and Respondent No. 8 is her mother-

in-law.

Facts of the case are that the petitioner was married to

one Suraj Kumar. Out of their wedlock, two daughters, namely

Gori and Pooja aged 9 and 8 years respectively and one son

Hemant aged 5 years were born. Certain disputes arose between

husband and wife and litigation ensued. But unfortunately, her

husband died on 14.12.2016. Five months after his death,

Petitioner’s sister-in-law i.e. sister of her late husband, Smt.

Beena wife of Shri Yadram (Respondent No. 4) came to the village

of the petitioner and forcibly took away her minor son Hemant,

aged 5 years. The petitioner went to residence of Smt. Beena and

requested to permit her to take him with her, but she was driven

out of the home. The petitioner filed an application under Section

97 Cr.P.C. before Sub Divisional Magistrate, Deeg, who issued
(3 of 5) [HC-57/2018]

search warrant against Smt. Beena. The police searched house of

Smt. Beena, but minor son of the petitioner was not found there.

Later, Smt. Beena also appeared before Sub Divisional Magistrate,

Deeg and informed that Hemant was with her mother, i.e. grand

mother of the child, Smt. Motni wife of Shri Harbhan (Respondent

No. 8). Sub Divisional Magistrate, Deeg issued warrants of search

against her as well as Pradeep, Surendra, Sandeep etc. However,

despite search by the police, Hemant was not found with them as

well. So much so that the petitioner had to file a criminal

complaint in the Court of Additional Chief Judicial Magistrate,

Deeg, which was sent to the Police for investigation under Section

156(3) Cr.P.C. and FIR No. 78/2018 was registered against private

respondents for offence under Sections 363, 342 and 120B IPC.

As a counter blast to that, Respondent No. 8, Smt. Motni filed an

application under Section 10 of the Guardian and Wards Act before

the Family Court, Bharatpur for appointing her as guardian of

Kumari Gori, Pooja, Pooja and Master Hemant.

Mr. B. N. Sandu, learned Additional Advocate General

submitted that when husband of the petitioner died, matrimonial

dispute was pending between them and the petitioner had filed a

dowry case against him by lodging FIR No. 291/2016 for offence

under Section 498-A, 406 and 323 IPC. After death of husband of

the petitioner, Smt. Beena (Respondent No. 4) along with some

persons came to the village of the petitioner and carried away her

son Hemant, who is minor and thereafter, did not allow him to

return back to the petitioner. Reference is also made to

proceedings under Section 97 Cr.P.C. and unsuccessful searches

carried out by the police at different places as also lodgement of
(4 of 5) [HC-57/2018]

FIR against the private respondent on the basis of criminal

complaint filed by the petitioner and recording of statements of

Karan Singh, Durga Prasad by police under Section 161 Cr.P.C. It

is contended that Respondent No. 8, Smt. Motni has filed revision

petition against search warrants issued by Sub Divisional

Magistrate, Deeg under Section 97 Cr.P.C. before the Court of

Additional District Judge, Deeg.

Smt. Beena wife of Shri Yadram, sister-in-law of the

petitioner (Respondent No. 4) and Smt. Motni wife of Shri

Harbhan, grand mother of Hemant (Respondent No. 8) are present

in the Court and submit that they have a right of custody of Gori,

Pooja and Hemant, who are children of the deceased and that they

have not committed any illegality in retaining custody of minor

child Hemant, aged 5 years and present habeas corpus may not

be maintainable.

Master Hemant, aged 5 years, has been produced today

in the Court by Mr. Kesar Singh, S.I., Police Station Deeg,

Bharatpur.

It is a peculiar human problem where dispute is not

between husband and wife as to the custody of children.

Admittedly, minor son of the petitioner, Hemant, aged 5 years was

living with his mother, when her husband Suraj died. Even if it is

accepted that the petitioner had filed dowry case against her

husband and other family members, that would not furnish any

justification for snatching custody of minor son from the petitioner,

Hemant, aged 5 years, who is his natural mother. When search

warrants issued by Sub Divisional Magistrate, Deeg failed to yield

any result and despite police conducting searches in the houses of
(5 of 5) [HC-57/2018]

private respondents, Hemant was not found, the petitioner had to

approach this Court by filing present habeas corpus petition. Mere

pendency of application under Section 10 of the Guardian and

Wards Act filed by Respondent No. 8, Smt. Motni, grand mother to

appoint her as guardian of three children of the petitioner

thereafter could not be a justification for depriving his mother, i.e.

the petitioner of the custody of her son Hemant. However, it goes

without saying that this judgment would not, in any manner, be

taken to influence the discretion of the Family Court, Bharatpur,

which would be entitled to take any view of the matter in

accordance with law in the welfare of all the three children.

In view of above, present habeas corpus petition is

disposed of with direction that to the official respondents to hand

over custody of minor son of the petitioner, Hemant, aged 5 years,

to her natural mother, i.e. the petitioner, Smt. Lalita, who is

present in the Court. Mr. Kesar Singh, Investigating Officer,

present in the Court, is therefore directed to ensure that custody

of Hemant, aged 5 years, is handed over to his mother, Smt.

Lalita, i.e. the petitioner and they be provided security if and when

needed.

(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J

Manoj/70

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