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Sparsh (Minor) vs State Of U.P. & 6 Others on 7 April, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

A.F.R.

Case :- HABEAS CORPUS WRIT PETITION No. – 22366 of 2016

Petitioner :- Sparsh (Minor)

Respondent :- State Of U.P. 6 Others

Counsel for Petitioner :- Rajesh K.S. Chaudhary,Akhilesh Srivastava

Counsel for Respondent :- G.A.,Desh Ratan Chaudhary

Hon’ble Harsh Kumar,J.

Heard Shri Akhilesh Srivastava, learned counsel for the petitioner and Shri Desh Ratan Chaudhary for private respondents no. 5 to 7 and learned A.G.A. for the State and perused the record.

The petition for Habeas Corpus has been filed by Sparsh the corpus through his father Shashank Singh @ Kunal, hereinafter referred as “Shashank”, with a prayer to issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce the corpus, boy petitioner Sparsh before the Court, in the interest of justice.

Counter and Rejoinder Affidavits have been exchanged apart from one Supplementary Affidavit filed by the petitioner.

The brief facts of the case are that as per averments made in this petition for Habeas Corpus, the marriage between petitioner Shashank and respondent No.5 Ruchi was solemnized on 2.11.2008 and out of wedlock a son Sparsh, the corpus, born on 1.9.2009; that due to certain differences between husband and wife the respondent no.5 left her matrimonial house and started living at her maternal house in village; that she never inquired about the corpus (even on telephone) who was studying in St. Paul School, Agra with monthly fee of Rs.4,000/- being paid by Shashank apart from which he has also taken a life insurance policy in the name of his son, the corpus; that he is graduate with B.Sc in Agriculture and was working at a salary of Rs.25,000/- per month, salary slip at annxure-4; that on the request of respondent no.5 he took the corpus at the house of respondents no.5 to 7 during summer vacations of year 2015, for twenty days and on 24.6.2015 when he went there to fetch the corpus, the respondent no.5 was not ready to send the corpus with petitioner and when he was leaving their house respondent no.5 to 7 snatched the corpus from his lap; that Shashank filed petition under section 25 of Guardianship and Wards Act No.1039 of 2015, seeking custody of the corpus, copy of petition at anenxure-6; that the respondent no.5 has filed maintenance petition under section 125 Cr.P.C. No.763 of 2015, while Shashank has filed petition under Section 9 of Hindu Marriage Act for restitution for conjugal rights no.893 of 2015, copies collectively filed at annexure-8; that respondent no.5 moved transfer application nos.89 of 2016 and 90 of 2016 before this Court for getting the petition under Section 25 of Guardianship and Wards Act and petition under section 9 of Hindu Marriage Act, transferred from Agra to Bulandshahr and vide orders dated 27.4.2016 passed by this Court, copies collectively filed at annexure-9, the two cases under Section 25 of Guardianship and Wards Act and section 9 Hindu Marriage Act were transferred from Agra to Bulandshahr.

In the counter affidavit filed by respondent nos.5 to 7 it has been contended that Shashank is

habitual drinker and he solemnized marriage with respondent no.5, by playing fraud; that at the time of marriage the respondent no.5 to 7 were told that Shashank is working in Canara Bank, Ferozabad but after marriage it was found that he was unemployed and was not working in Canara Bank, Ferozabad or anywhere else; that after marriage Shashank worked in Mother Dairy Jaipur, Rajasthan as skilled labour but left the job after few months and then in the year 2011 he joined teaching job in private school at Fatehpursikri which was also left by him after few months; that again in the year 2012 with the help of respondent nos.5 to 7 Shashank started the work of plying taxi but that was also given up by him; that due to bad behaviour and bad habits including the habit of drinking, the elder brother of Shashank who is working in private company keeps distance with him and has severed all his connections with Shashank and is living separately with his son; that the Shashank has considerable income from agricultural land (transferred by his father in his name) but he is spending/wasting all his money on drinking liquor and enjoyment with friends; that Shashank has also usurped the entire Stridhan of respondent no.5 which shall be clear from the copy of his bank account; that Shashank had been making demand of dowry and treating the respondent no.5 with cruelty in connection with non-fulfillment of demand of dowry because of which by lodging F.I.R., Case Crime no.269 of 2011 was registered against him under section 498A IPC etc., however, later on parties entered into compromise in the year 2012; that on account of subsequent criminal incidents committed by Shashank upon F.I.Rs lodged, Case Crime no.19 of 2015 under Section 498A, 323, 504 and 506 IPC, and another case crime no.129 of 2015 under Sections 498A, 307, 504, 506 IPC and 3/4 D.P. Act were registered against Shashank and are pending for disposal; that the corpus is living peacefully with his mother, respondent no.5 and getting required education in best school St. Momina School at Bulanshahr, copies of fee slip etc. filed at CA-1;that it is wrong to say that Shashank has taken any insurance policy in the name of his son Sparsh, the corpus, rather the real fact is that insurance policy was purchased by grandfather of Sparsh who purchased two insurance policies, each one in the name of his two grandsons Sparsh and Govind.

In reply to counter affidavit Shashank filed rejoinder affidavit denying the allegations made in counter affidavit and filed supplementary affidavit with copy of order sheets of petition under 25 of Guardianship and Wards Act No.1039 of 2015 at Agra, renumbered as No.18 of 2016 at Family Court Bulandshar (after transfer orders passed by this Court) at annexure SA-1 and SA-2 with copies of statements of his PPF Account and Savings Bank Account, collectively at annexure-SA3.

Learned counsel for the petitioner contended that the marriage between the father of corpus Shashank and respondent no.5 Ruchi was solemnized on 21.11.2008 and out of wedlock a son Sparsh, the corpus was born on 1.9.2009; that due to some matrimonial dispute between the husband and wife, the respondent no.5 left for her maika on the pretext that she will undergo nursing course from her maika at Bulandshahr; that the respondent no.5 filed a false criminal case against Shashank under Sections 498A,, 323, 506 IPC and 3/4 D.P. Act as Case Crime No.269 of 2011 in which compromise took place between the parties on 1.2.2012 and respondent no.5 returned to her matrimonial house; that respondent no.5 again left for her maika in the year 2015 and is residing there since then; that Shashank has filed matrimonial petition no.893 of 2015 against respondent no.5 for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955 while the respondent no.5 has filed a criminal complaint against Shashank under Section 125 Cr.P.C. no.763 of 2015 claiming maintenance @ Rs.5,000/- p.m. for herself and @ Rs.5,000/- p.m. for her son, the corpus Sparsh total Rs.10,000/- p.m.; that on 15.7.2015 Shashank has also filed a petition Section 25 of Guardianship and Wards Act case no.1039 of 2015 in the Court of Principal Judge, Family Court, Agra, copy is at annexure-7; that the petitions under Section 9 Hindu Marriage Act and under Section 25 of Guardianship and Wards Act have been transferred from the Court of Principal Judge, Family Court, Agra to Principal Judge, Family Court, Bulandshahr; that the corpus was living with his father since 2012 to 2015 and was studying in one of the best St. Paul School, Agra and in the summer vacations Shashank on the request of respondent no.5, took the corpus at the maternal house of respondent no.5 to live with his mother for some time during summer vacations, but on completion of summer vacations when he went to her Sasural for fetching the corpus, the corpus was not sent with him and he had to file a petition under Section 25 of Guardianship and Wards Act; that since the case under Section 25 of Guardianship and Wards Act as well as case under Section 9 of Hindu Marriage Act have been transferred to Bulandshahr and are not likely to be disposed of shortly, Shashank has preferred this petition with view to take care of the welfare of a minor corpus and protection of his future by providing him best education; that the corpus has just completed the age of seven years; that the custody of corpus with his father, who is unable to meet the heavy educational expenses, will not be better in the interest of the corpus, while welfare of corpus must be the paramount consideration in this petition.

Per contra, learned counsel for respondents no.5 to 7 contended that the petition is malafide and misconceived and has been filed with mala fide intention to harm and harass the respondent no.5 and her old parents; that as per the averments made in the petition itself, the corpus was left with the respondent no.5 by his father at his own and the custody of corpus with mother may not be considered to be ‘unlawful custody’; that it is not disputed that the corpus was studying at St. Pal School, Agra from 2012 – 2015 but since 2015 the corpus is taking his studies in one of the best school at Bulandshahr, St. Momina School; that mere payment of high school fee is not enough for proper development of corpus and due care and protection of parents is also necessary; that since father of corpus, due to his bad habits is unable to provide due care, support and protection to which, the corpus is entitled that the care, protection and support of his mother respondent no.5, who is taking all care of the corpus is necessary; that the petitioner is habitual drinker and use to spend/waste all his money on liquor and enjoyment with friends, on account of which all his relatives have severed connections with him and reside separate from him; that due to bad habits of the petitioner, the custody of corpus with petitioner is neither safe nor in the interest of corpus; that the case crime 19 of 2015 under sections 498A, 323, 504 and 506 I.P.C. and no.129 of 2015 under Sections 498A, 307, 504 and 506 IPC and 3/4 D.P. Act are also pending against the Shashank; that after filing of the counter affidavit by the respondents on 31.8.2016 the petitioner Shashank has filed supplementary affidavit on 9.2.2017 with copies of statement of his P.P.F. account, and savings bank account collectively at annexure-SA3; that copy of statement of P.P.F. account at page 18 and 19 shows that the above account has been opened on 15.10.2016, (after filing of counter affidavit by respondent no.5 in this case) in order to fabricate, manufacture some evidence regarding considerable balance, and has deposited a sum of Rs.70,000/- within last four months; that the copy of statement of the Savings Bank account at pages 20, 21 and 22 of SA3 shows that the maximum balance in the account upto 2.9.2016 was Rs.22,024/- only as on 20.11.2015 with a balance of Rs.738/- only on 2.9.2016, and a sum of Rs.20,000/- and Rs.80,000/- has been deposited very recently (by borrowing from someone or otherwise) on 7.2.2016 and 13.10.2016 in order to misguide the court; that in P.P.F. account, copy of statement of which is at pages 18 and 19 of SA-3 the nominee is Susheela Singh, neither the corpus Sparsh nor wife Ruchi, the respondent no.5; that the petitioner has not come with clean hands; that since the petition under Section 25 of Guardianship and Wards Act is pending before the competent Principal Judge Family Court, the petition for Haheas Corpus is not maintainable as Shashank may seek adequate and proper remedy in pending case before Family Court; that in compliance with direction/order of the Court, the corpus was produced before the court on 31.8.2016 but on that date the petitioner deliberately did not appear and the court after making necessary inquiry exempted the corpus from production before the court on subsequent dates; that the petition has been filed with wrong and baseless allegations and is liable to be dismissed with costs.

Upon hearing parties counsel, and perusal of the material on record as well as counter, rejoinder and supplementary affidavits exchanged between the parties with annexures thereto, I find that as per the averments made in paragraph 10 of this petition,

“during summer vacations in the month of June, 2015 at the desire of respondent no.5, Shashank allegedly carried the corpus, Sparsh to the place of respondent no.5 where he remained for more than 20 days and on 24.6.2015 when the school of corpus was to reopen, Shashank requested respondent no.5 to come with him to her matrimonial house, so that the corpus may join the school but respondent no.5 refused and when Shashank was ready to go with the corpus the respondent no.5 to 7 allegedly snatched the corpus from his lap”.

It is noteworthy that immediately after the alleged incident dated 24.6.2015 he has given an application to SSP, Bulandshahr, copy of which is at annexure-6 page 29 and 30 (instead of annexure-5 as mentioned in paragraph 10), with a different story to the effect that

“he had come to his Sasural with his friend Vivek Singh at about 11.00 am on 24.6.2015 and when he asked his wife and father-in-law that he has come to fetch his son Sparsh, the corpus, his wife and in laws committed marpit with him and his friend, and by locking them in a room snatched the gold chain, bracelet and Rs.10,000/- cash from Shashank and also damaged their vehicle and on their alarm they were rescued by villagers and that his wife after usurping his Rs.5.00 lakhs is living in maika since 2011”.

It is also noteworthy that on the other hand in contradiction to it on very next day i.e., on 25.6.2015, respondent no.6 Rajendra Singh (father-in-law) of petitioner Shashank got received an application in the office of S.S.P., Bulandshahr, on the basis of which F.I.R. was lodged against Shashank and Vivek at case crime no.129 of 2015 under Section 498A, 307, 504 and 506 I.P.C. and 3/4 D.P. Act, copy filed at page 33 to 35 at annexure-RA5 to the rejoinder affidavit, wherein it was contended by Shri Rajendra Singh, the father-in-law of Shashank, that

“on 24.6.2015 at about 11.30 a.m. Kunal @ Shashank and his friend Vivek leaving their vehicle outside the village, came to his village and (for reasons earlier mentioned in the application) when he was asked that why he has come here, even after having been forbidden, Vivek, the friend of Shashank fired at him (respondent no.6) from which he narrowly escaped and on his protest they ran away and fled by their vehicle”.

It is pertinent to note that the copy of statement of PPF account of Shashank, filed at SA3, page 18 and 19 shows that the PPF account was opened in PNB Bank on 15.10.2016, pending petition, (5 months after filing of the present petition for Habeas Carpus in May, 2016) and even after filing of counter affidavit dated 31.8.2016 by respondent no.5 to 7. In the above account a sum of Rs.45,000/- was deposited on 10.1.2017 to show a balance of Rs.70,000/-. Apart from it, the copy of statement of savings bank account of Shashank filed, at page 20 to 22 at annexure-SA3, shows that the above account was carrying a maximum balance of Rs.22,000/- and odd upto the date of filing of the petition of habeas corpus in May, 2016 and thereafter deposit of Rs.80,000/- on 13.6.2016 and 23.10.2016 each and Rs.20,000 on 2.9.2016 and 7.10.2016 each was made showing the balance of Rs.1,00,738/- as on 13.10.2016.

It has not been disputed in the rejoinder affidavit that Sparsh, the corpus is getting education in St. Momina School, Bulandshahr and there is no whisper that St. Momina school is an inferior or below standard school. It is admitted to the parties that the relations between Shashank and his wife Ruchi, the respondent no.5 are very strained and after a compromise in criminal case no.269 of 2011 under Section 498 A etc of IPC in the year 2012, two more criminal cases, case crime no.19 of 2015 and 129 of 2015 are pending against Shashank, apart from which respondent no.5 has also filed a maintenance petition no.763 of 2015 under section 125 Cr.P.C, details of which have been given earlier, since before filing of the habeas corpus petition. It is also admitted that Shashank has filed petition under section 9 of Hindu Marriage Act no.893 of 2015 on 3.7.2015 with the prayer that

^^A- ;g fd ;kph ds i{k esa foif{k;k ds fo:) oSokfgd lEcU/kksa dh iquZLFkkiuk gsrq vkKfIr ikfjr dh tkosA

AA- ;g fd foif{k;k ls mlds mlds iq Li’kZ ds Hkfo”; ,oa f’k{kk dks /;ku esa j[krs gq;s ‘kh?kz fnokyus ds vkns’k ikfjr fd;s tkosA

AAA- ;g fd mDr ;kfpdk dk gtkZ [kpkZ ;kph dks foif{k;k ls iznku djk;k tkosA

Av- ;g fd vU; vuqrks”k tks ek0 U;k;ky; ;kph ds fgr esa mfpr les foif{k;k ls ;kph dks fnyk;k tkosA**

and has filed petition under section 25 of Guardianship and Wards Act 1039 of 2015 on 15.7.2015 with the prayer

^^A- ;g fd ;kph dh ;kfpdk dks Lohdkj djrs gq;s ukckfyd ekLVj Li’kZ ¼6 o”kZ½ dks foif{k;k dh vfHkj{kk ls gVkdj ;kph dh vfHkj{kk esa nsus ds vkns’k ikfjr fd;s tkosA

AA- ;g fd mDr ;kfpdk dk gtkZ [kpkZ ;kph dks foif{k;k ls iznku djk;k tkosA

AAA- ;g fd vU; vuqrks”k tks ek0 U;k;ky; ;kph ds fgr esa mfpr les foif{k;k ls ;kph dks fnyk;k tkosA

which are pending before Family Courts at Bulandshahr.

From the above material on record, it is clear that prayer for custody of corpus has been made by Shashank in his petition under section 9 of Hindu Marriage Act dated 3.7.2015 as also in petition under Guardianship and Wards Act dated 15.7.2015 and there is no whisper in any of the two petitions that his son Sparsh, the corpus was snatched from his lap on 24.6.2015, (as has been mentioned in paragraph 10 of the Habeas Corpus petition), rather in contradiction to the averments made in paragraph 10 of the of this petition for Habeas Corpus, it has been contended in paragraph 12 and 22 of the petition no.1039 of 2015 under Guardianship and Wards Act, copy of which is at page 32 to 37 at annexure-7 (instead of annexure-6 as mentioned in paragraph 11 of the petition) that

“Shashank brought Sparsh to the place of respondent no.5 and after living there for few days when he asked respondent no.5 to come to Agra with him along with the son Sparsh, she refused to go with him on one pretext or the other and kept Sparsh with her on the pretext that his vacations are continuing, allegedly stating that since he is living with him for the last three years and will have to live with Shashank since 1st July 2015, so she will herself send Sparsh after 20-25 days and cause of action arose on 29.5.2015 when by playing fraud Sparsh was taken into custody by respondent no.5 to 7.”

The above contradictions between the averments made in para 10 of the petition for Habeas Corpus and para 12 22 of petition under section 25 of the Guardianship and Wards Ac are material contraditions and show that the present petition for HC which has been filed after almost one year of the alleged incident of May or June, 2015, and filing of petition under section 9 of Hindu Marriage Act and under section 25 of the Guardianship and Wards Act (as discussed above) and within one month of passing of transfer orders dated 27.4.22016 passed by this court in petition no 89 of 2016 and 90 of 20916 for transfer of petition no.1039 of 2015 under Guardianship and Wards Act and petition no.8193 of 2016 under 9 Hindu Marriage Act from district Agra to district Bulandshahr, has been made with malafide intentions and making improvements by raising a false new plea that his son Sparsh, the corpus was snatched by respondent no.5 to 7 on 24.6.2015, so that his custody with respondent no.5 to 7 may be shown to be ‘unlawful custody’.

From the facts discussed above, it is clear that prior to filing of this petition at the time of filing of petition no.893 of 2015 and 1039 of 2015 seeking relief of custody of Sparsh, there was no whisper about snatching the corpus by respondent no.5 to 7 from the lap of Shashank and this new contention was developed/improved after transfer of the two cases from Agra to Bulandshahr, to make a ground for the writ of Habeas Corpus and the contention so made may not be relied in view of the material contradictions.

In the matters of custody of minor children the welfare of the child is the main and utmost consideration. In view of above contradictions, without any evidence it may not be determined in the Habeas Corpus petition that how the interests of minor child may be better looked after. This matter may be only be decided upon evidence of parties, by the Family Court under the proceedings of Section 25 of Guardianship and Wards Act in pending petition no.1039 of 2015. It may not be disputed that despite there being remedy under Guardianship and Wards Act the custody of minor child may be delivered to the petitioner under the petition of Habeas Corpus but unlawful custody of the corpus is sine qua non for maintaining the petition and since Shashank has failed to establish that the custody of minor Sparsh the corpus with his mother is wrongful or unlawful custody, so the present Habeas Corpus petition is not maintainable and may not proceed.

It will not be unnecessary to mention that studies of minor Sparsh are going on uninterruptedly and there are contentions with regard to wastage of money/income by Shashank over drinking liquor and enjoyment with friends. Mere payment of heavy school fees of child, may not be sufficient for taking care of the interests of minor for which moral as well as personal support, protection and looking after of minor by either of parents is also required for benefit and due growth of minor.

In view of the discussions made above, the petition for Habeas Corpus has no force and is liable to be dismissed.

The petition is dismissed. However, the Family Court at Bulandshahr is directed to decide the petition no.1039 of 2015 under Section 25 of Guardianship and Wards Act expeditiously in accordance with law.

Any observation made in the order will not adversely affect, the case of either party before Family Court or any other Civil/Criminal Courts.

Order Date :- 07.04.2017

VS

 

 

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