VIVEK KUMAR Vs. ASHOK KUMAR

JUDGEMENT

(1.) This petition for a writ of habeas corpus has been filed on behalf of Vivek Kumar aged 13 years by his mother Smt. Meenakshi Devi with the contention that she being a natural and legal guardian of her son is entitled to his custody.

(2.) Shortly stated, the petitioner's case is that after her husband's death, the opposite parties, who are the brother, grandmother and the sister respectively of her husband, forcibly started living at her residence No. 9/217, Indira Nagar, Lucknow which was allotted in her husband's name during her lifetime. They misbehaved with her and threatened to take away her both the children if she would offer any resistance to their dictates. It was in these circumstances that she was forced to leave her husband's house on 28-6-2001 but she was not allowed to take along her son Vivek, although she could manage to carry with her another son Abhishek Kumar. She moved an application to the Additional District Magistrate, Lucknow for providing security to her as she was afraid of the atrocious attitude of the opposite parties. In the meantime, the opposite party No. 1 who is the uncle of the petitioner Vivek moved an application before the District Judge for his appointment as guardian of the petitioner. Such a move was made with evil design to pressurize the petitioner's mother Meenakshi to abandon her claim for employment under Dying in Harness Rules. Further, there was no justification for moving such an application when Meenakshi had already been appointed as guardian of the petitioner by the Court vide order dated 9-11-2000 as contained in Annexure-1. As a matter of fact, there cannot be a better guardian for a child other than his own mother but the opposite party No. 1 filed application for his appointment as legal guardian in order to pressurize her so as to relinquish her rights over the accommodation which was allotted in her husband's name and other movable and immovable properties. On the strength of her legal claim, Meenakshi succeeded in seeking employment and she is regularly earning monthly salary of Rs. 5,000.00 as a Central Government employee. The opposite parties turned down all requests of the petitioner's mother to hand over the petitioner's custody but every time, not only they refused but also threatened her with dire consequences. In these compelling circumstances, the petitioner was obliged to file this petition for a writ of habeas corpus commanding the opposite parties to release the petitioner from their illegal custody.

(3.) . The opposite parties 1 and 3 filed their objections and asserted that after the death of Pradeep Kumar on 8-2-1999, they allowed his widow Meenakshi Devi to draw the amount of gratuity, group insurance and other dues. After collecting all her dues, she started living in a different house with one Naseeb Prasad Bhartiya. However, the petitioner Vivek being mature refused to accompany her mother. After a lapse of about one year, she has filed this petition for habeas corpus, possibly with an intention to grab over the house in which the opposite parties and Vivek Kumar have been living. They have denied that they came to live in the house allotted to Pradeep Kumar after his death. As a matter of fact, they were living with him for quite a long time. They have denied that they threatened the petitioner's mother with dire consequences. Also they have denied the allegation that Meenakshi Devi was forced to leave the house. Master Vivek Kumar is living with the answering opposite parties with his free consent and as he is mature enough to take a decision, he is not at all willing to go and live with his mother. Otherwise also, it is not in the welfare of the child to go to Meenakshi's place as she is an uneducated lady and she has been living in the company of altogether a stranger person Naseeb Prasad Bhartiya. The boy will neither get a healthy or moral atmosphere there nor he will be treated with care and affection by the companion of Meenakshi. The opposite parties are well to do persons and can very conveniently and comfortably provide better nursing to Master Vivek who is willingly residing with them. Therefore, the petition for habeas corpus deserves to be rejected.