ANKUR TRIPATHI ALIAS TINNU Vs. RADHEY SHYAM PANDEY

JUDGEMENT

(1.) By means of this habeas corpus writ petition the parents of minor child Ankur Tripathi alias Tinnu, who is aged about 9 years, have sought custody of the minor child from opposite parties.

(2.) At the outset it will be relevant to mention that opposite party No. 1, Radhey Shyam Pandey, is the maternal grandfather of the child and is aged about 57 years, opposite party No. 2, Srimati Rama Pandey is the maternal grandmother and is aged about 55 years and opposite party No. 3 Srimati Kamlesh who is maternal aunt of the minor is aged about 30 years. The parents of the minor reside at Lucknow while the opposite parties reside at Kanpur. According to the averments made in the petition the marriage between the parents of the minor took place on 16/05/1977 and two sons were born, the elder one is Gaurav Tripathi who is aged about 11 years of age, the younger one is Saurabh Tripathi alias Tinku who has been renamed by the opposite parties as Ankur Tripathi, was born on 7/07/1983 and who is petitioner in the present case. After about one year of the birth of the petitioner the mother of the petitioner, Srimati Akhilesh Tripathi, fell seriously ill and opposite parties 1 and 2 came to Luck-now and took away the petitioner from the guardianship of the parents of the minor for looking after the minor during the illness of the petitioner's mother but when the petitioner's mother recovered from illness she went and stayed with her parents at Kanpur for some month. She returned to Lucknow with the petitioner in the month of December, 1985 and the minor was admitted in St. Thomas School, Lucknow in pre-nursery class where his elder brother was also studying. After about two months the opposite parties 1 and 2 came to Lucknow and took away the minor petitioner for a couple of days. Thereafter whenever the parents of the petitioner asked for the custody of the minor petitioner the same was avoided by the opposite parties on some pretext or the other and the minor was got admitted in a school at Kanpur and thereafter they insisted that his study may be allowed to be completed at Kanpur. When on 3-5-1992 the parents of the minor petitioner went again to Kanpur to bring back the petitioner they were not allowed to do so and were turned out of the house. Thereafter the parents of the minor petitioner gave an application to the Inspector Incharge, Police Station, Kalyanpur, Kanpur City asking for release of the petitioner from the clutches of the opposite parties. Thereafter on 17/05/1992 the parents of the minor petitioner again went to the house of the opposite parties to bring back the minor petitioner to Lucknow but they were abused stating that they had gifted the minor to opposite party No. 3 and now she is the mother of the minor. They were also turned out of the house by the opposite parties. The petitioner is being ill-treated and adequate food and clothing are not being given to him. The opposite party No. 1, Radhey Shyam Pandey, is working as Accountant in Jal Nigam Ganga Pradushan Shakha, Sharda Nagar and is drawing a little salary and opposite parties 1 and 2 are old and infirm and unable to take proper care of the minor petitioner. Opposite party No. 3, Smt. Kamlesh was married to Sri A. N. Pathak but she had left his company about 17 years back and is now living as a kept of Sri R. D. Tiwari. She is also working in Jal Nigam as steno and is drawing a meager salary. It is also alleged that her company with the petitioner will leave an unremoveable scar on the education, life and character of the petitioner and it will not be in the interest of the minor to remain in the custody of the opposite parties. It is also alleged that the father of the petitioner is a lecturer in Chemistry in Jai Narain Degree College, Lucknow since 1969 and at present is in a senior scale of Reader drawing a gross salary of Rs. 7000.00 per month and has only his wife and elder son as his dependents. His wife, Smt. Akhilesh, is also a graduate in Arts and is a pious and homely lady and can look after the minor petitioner with great love and affection. The minor petitioner is being deprived of love and affection of his parents. The welfare of the child is in the hands of his parents. He can be mentally and physically developed in the company of his parents. The minor petitioner was removed from the custody of his parents from his residence at Lucknow.

(3.) Opposite parties have filed a common counter-affidavit alleging that on or about 24/02/1984 the minor petitioner, Ankur Tripathi was hardly six months old when his parents had voluntarily entrusted the custody of the minor petitioner to the opposite parties once for all. The parents of the petitioner had fully authorised the opposite parties to treat the child as their own and be responsible for his maintenance, education and general welfare. The parents of the minor petitioner never bothered to take the child back at any stage prior to 12-4-1992. Now they have resorted to black mailing. The nuptial activities of Srimati Akhilesh Tripathi were not above board before her marriage and she had eloped with one boy, named Kishore. After marriage she had conceived the first son, Gaurav Tripathi and thereafter somehow or the other her husband Dr. Diwakar Tripathi came to know about her prenuptial immoral activities which resulted in regular domestic quarrels daily in the house and both the parties had lodged many first information reports at Police Station Sarojini Nagar, Lucknow. Thereafter when Ankur, the minor petitioner, was born, Dr. Diwakar Tripathi had doubted about the paternity of Ankur and there were regular quarrels between them on this point. The child was neglected after the birth and his parents did not take proper care of the child. When the child was delivered to opposite party No. 3 he was very weak and there were very rare chances of his survival. The minor child was thereafter medically treated and a lot of sum was spent over this child. The mother of the minor child had also fallen critically ill and in absence of proper medical treatment she was also suspected to die. In these circumstances the parents of the minor child had decided to abandon the child and put him into some orphanage. When these facts came to the knowledge of the opposite parties they offered to take the child in their custody and look after his welfare. The parents of the minor child agreed to part with the company of the minor child in favour of the opposite parties. This was done in presence of certain witnesses whose names are mentioned in the counter-affidavit. Opposite party No. 3 had no male child and therefore she was eager to adopt the minor Ankur Tripathi as her son, and now the opposite party No. 3 is assuming the role of the mother of the child (minor petitioner). The mother of the minor child used to visit her parents at Kanpur whenever she fell ill as there was nobody at Lucknow to undertake her proper treatment. The minor petitioner did not return to Lucknow in December, 1985 as alleged. In fact Ankur, the minor petitioner, with opposite party No. 2 and Km. Rashi, daughter of opposite party No. 3, went to Lucknow on 1/08/1986 for participating in the birth day celebrations of the elder brother, Gaurav Tripathi. It was the normal practice to go to Lucknow and come back to Kanpur either on the same day or after one or two days' stay. Ankur Tripathi was, no doubt, admitted in St. Thomas School, Sarojini Nagar, Lucknow in August, 1986 immediately after the said birth day but he did not stay there and was sent back to Kanpur after hardly one day's attendance in the school. His name was, therefore, struck off the rolls after a day or two. After 24/02/1984 the parents of the minor never took any steps to take back the minor and now on 12/04/1992 after a gap of about 81/2 years they came to the residence of the opposite parties with the object of black mailing and exploiting the opposite parties. The opposite party No. 3 is the sole owner of a house No. 1063 M. Block, Kakadeo, Kanpur. The market value of the said property is valued at several lacs of rupees. The opposite parties along with the minor petitioner, Ankur Tripathi, reside in the same house. It is alleged that Diwakar Tripathi, the father of the minor petitioner, is a habitual gambler and has already lost enormous wealth over Satta business and is now financially bankrupt. Half of the property of opposite party No. 3 will go to Ankur Tripathi, the minor petitioner and the remaining half will go to her daughter Kumari Rashi. The Police Inspector of Kalyanpur Police Station, Kanpur had called the opposite parties 1 and 3 along with Ankur Tripathi, and handed over the minor child Ankur Tripathi to his father, Dr. Diwakar Tripathi but the minor child wept and cried in panic and told the Police Officer that he did not recognise his parents and refused to go with them. The parents of the minor have also filed a petition under S. 10 of the Guardians and Wards Act read with S. 9(g) of the Family Courts Act, 1984 before the Principal Judge, Family Court, Kanpur Nagar, on 8-4-1992 and the question of their coming to the residence of the opposite parties on 17-5-1992 does not arise and they never came to the house of the opposite parties. The opposite parties never, abused or threatened the parents of the minor petitioner as alleged. It is not a fact that the minor child is being ill treated and is not being given adequate food and clothing. He is also not being beaten.