SHIVA MINOR Vs. STATE OF U P

JUDGEMENT

(1.) Smt. Pushpa Devi @ Mahi and her husband, Devendra Kumar, are an estranged couple. They have two children, Shiva and Suraj, both minors. Shiva is aged five years old, whereas Suraj is three and a half years in age. Both the children currently stay with their father, Devendra Kumar, along with their grandmother, Smt. Neelam and their father's brother, Dhan Singh. The mother says that the two children ought to stay with her in order to secure their welfare better. Devendra Kumar, the minors' father, Smt. Neelam, their grandmother and Dhan Singh, their uncle, resist this claim. It is this tussle over the minors' custody that has led Smt. Pushpa Devi @ Mahi to institute these proceedings for the issue of a writ in the nature of habeas corpus.

(2.) This petition was instituted on 31st of October, 2019. The proceedings in this case commenced on 05.11.2019, when notice was issued to Devendra Kumar to produce the two minors before the Court on 04.12.2019. The case was adjourned on 04.12.2019, awaiting a compliance report from the Chief Judicial Magistrate, Shahjahanpur. On 02.01.2020, the Court recorded that notice had been served upon respondent no.4 personally, but the minors have not been produced. The Chief Judicial Magistrate was directed to ensure the minors' presence, attended with a direction to the Senior Superintendent of Police, Shahjahanpur to facilitate the process. On 21.01.2020, which was the date fixed for the return vide order dated 02.01.2020, the minors were produced, but their personal appearance was exempted until ordered otherwise. The case came up again on 10.02.2020 and was adjourned to 17.02.2020. There was then an adjournment from 17.02.2020 to 25.02.2020 and from 25.02.2020 to 04.03.2020. It must be remarked here that all proceedings until 19.10.2020 were taken without a formal admission of the petition to hearing.

(3.) On 19.10.2020, when the petition came up, a detailed order was passed, admitting the petition to hearing and ordering the Superintendent of Police, Shahjahanpur to cause the minors to be produced from the custody of respondent nos.4, 5 and 6 on the date of return, which was indicated to be 22.10.2020. It was also ordered that Devendra Kumar, the minors' father and Smt. Pushpa Devi @ Mahi, the minors' mother, who had effectively petitioned on behalf of the minors, shall also remain present in person.