BIJENDER Vs. STATE

JUDGEMENT

(1.) The petitioner has filed this habeas corpus petition seeking production of his uncle, Godhay alias Bhurey (hereinafter referred to as 'Godhay') to ascertain his welfare. The sole prayer made by the petitioner in this writ petition is as under:-

(2.) The petitioner has filed this writ petition on the averments that he was taking good care of Godhay who was staying at village Nangal Thakran; Godhay's wife passed away on 22/10/2019 and since then petitioner's family has been looking after Godhay's daily and his medical needs; respondent No.2 is the niece of Godhay's deceased wife; the petitioner and his family members never knew respondent No.2 as she never visited Godhay's house in village Nangal Thakran; Godhay is an illiterate person and not keeping well for past couple of years; respondent No.2 forged or fraudulently got a gift deed dtd. 8/10/2018 executed from Godhay in respect of his property; the petitioner and his family were shocked to find that Godhay's land was mutated in favour of respondent No.2 by virtue of a gift deed dtd. 8/10/2018; Godhay has filed a civil suit seeking cancellation of the gift deed dtd. 8/10/2018 which is pending before the Rohini Courts; respondent No.2 on becoming aware of the filing of the civil suit visited village Nangal Thakran on 26/8/2020 and sought access to Godhay's house whereupon the petitioner and his family told respondent No.2 that Godhay has filed a legal suit against the respondent No.2 seeking cancellation of the gift deed dtd. 8/10/2018; since respondent no.2 refused to leave, petitioner's family members made a PCR call upon which respondent no.2 reluctantly left; on 27/8/2020, respondent No.2 visited Godhay's residence along with police and a search warrant issued by Id. SDM, Narela and Godhay was taken to Sant Soham Hospital, Bawana where he remained admitted till 28/8/2020 on the directions of Id. SDM, Narela; Godhay was produced before SDM, Narela on 28/8/2020 in an ambulance; and Id. SDM, Narela passed an order dtd. 28/8/2020 handing over the custody of Godhay to respondent No.2.

(3.) Respondent No.2 has filed her reply dtd. 13/9/2020 in which she has disputed the averments made by the petitioner. According to respondent No.2, Godhay was staying with her for the last 15 years; the biological mother of respondent No. 2 passed away when she was six months old and she was adopted and raised by Godhay and his wife as they did not have any biological child of their own; Godhay's wife was the real sister of the biological mother of the respondent No.2; Godhay alias Bhurey alias Ran Singh is one and the same person; the petitioner has made false averments in the petition that respondent No.2 never visited Godhay at village Nangal Thakran whereas respondent No.2 lived with Godhay until her marriage; respondent No.2 has filed various photographs of Godhay with her and her family as Annexures R-9 to R-15; after marriage respondent No.2 started residing with her husband at Sonipat and she often visited Godhay at village Nangal Thakran along with her children during school vacation of her children; Godhay also visited and stayed with respondent No.2; respondent No.2 has filed the photographs during Godhay's stay with respondent No.2 as Annexures R-16 to R-25; about 15 years ago, Godhay and his wife expressed their inability to stay in the village whereupon respondent No.2 invited them to stay with her; since then, Godhay and his wife have been living with respondent No.2 who was taking care of their medical needs; respondent No.2 has filed the medical records of Godhay as well as his wife Kamla Devi as Annexures R-26 to R-29; Godhay has a house in the village Nangal Thakran which comprises of one room on the ground floor, one room upstairs, verandah with a small storage room and no washroom facility being an old construction, the photograph of the village house is Annexure R-25; respondent No.2 shifted from Sonipat to Chandigarh in 2008 but shifted back in 2013; during this period, both Godhay and his wife accompanied the respondent No.2 and they were acquainted with the neighbors of respondent No.2 whose affidavits have been filed as Annexures R-30 to R-33; Godhay's wife suffered a paralytic attack on 2/2/2017 and after a few days, respondent No.2 brought her to Sonipat; in April, 2017, respondent No.2 shifted to Panipat; in October, 2018, Godhay executed a gift deed in respect of his land in favour of respondent No.2 of which notice was given to the petitioners who did not raise any objections; in 2019, Godhay developed knee problem whereupon a part time care taker was kept by respondent No.2 whose affidavit has been filed as Annexures R-38; in September, 2019, Godhay was diagnosed with dementia; Godhay was hospitalised from 9/10/2019 to 22/10/2019; on 22/10/2019, Godhay's wife Kamla Devi expired and respondent No.2 performed the last rites in the village; on 28/6/2020, Godhay went to the village to find out the status of his properties and stayed in his house along with the driver and caretaker of respondent No.2; on 2/8/2020, the husband of respondent No.2 visited the village to bring back Godhay when the petitioner and his family members threw him and the caretaker out of the house and forcibly confined Godhay; on 4/8/2020, respondent No.2 visited village Nangal Thakran to bring back Godhay but the petitioner did not allow Godhay to go with respondent No.2; on 23/8/2020 and 26/8/2020, respondent No.2 again visited Godhay and found his health deteriorating; the respondent No.2 made a complaint to the police on 27/8/2020, in pursuance to which FIR was registered on 3/9/2020; respondent No.2 filed an application before SDM on 27/8/2020 under Sec. 97 CrPC for issuing search warrants to find Godhay and to provide him medical relief in pursuance to which the Id. SDM issued a search warrant; Godhay was produced before Id. SDM via video conference and was thereafter, admitted in the hospital by the order of the Id. SDM; the custody of Godhay was handed over to respondent no.2 by the order of the Id. SDM.