MASTER PRABUDH SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) Master Prabudh Saxena has filed this writ petition in the nature of habeas corpus through his natural guardian father, Shri Alok Saxena.

(2.) The brief facts are that the marriage of opposite party no.4 was solemnized with the father of the petitioner, Alok Saxena on 5.12.2002 and the petitioner was born on 16.9.2007. Since the marriage between the opposite party no.4 and father of the petitioner was inter religion, hence differences arose at the behest and interference of the family member of the opposite party no.4. The opposite party no.4 was pressurizing the father of the petitioner to adopt the religion of Christianity, to which he was not agreed. On 29.10.2013 the father of the petitioner filed a suit for Restitution of Conjugal Rights before the Family Court, Lucknow. On 28.1.2014 the opposite party no.4 went away from the house to some unknown place. On 15.2.2014, the father of the petitioner made a complaint to Police Station Kaisarbagh, Lucknow with regard to the disappearance of opposite party no.4 and the petitioner and an application was also given to the Senior Superintendent of Police, Lucknow. The S.S.P. Lucknow referred the dispute for mediation but the opposite party no.4 did not turn up. Having no other alternative the father of the petitioner filed a suit of dissolution of marriage on 19.2.2105 which is pending. The opposite party no.4 after getting notice of the aforesaid proceedings came to the house of the father of the petitioner on 27.11.2015 and expressed her desire to spend some time with her son. However, the opposite party no.4 took away the petitioner with her without the knowledge of the father of the petitioner. Since then the petitioner is living with the opposite party no.4. Thereafter several efforts were made by the father of the petitioner to get the custody of the petitioner but without any result. The detention of the petitioner with the opposite party no.4 is absolutely illegal and is not in the welfare of the petitioner. The academic future of the petitioner is also on the verge of destruction.

(3.) The opposite parties no. 4 and 5 have filed their counter affidavit, in which it has been stated by the opposite party no.4 that she is the real mother of the petitioner and is living with him at Allahabad in a rental accommodation. It is also stated that she was pursing her Ph.D. at Institution of Agriculture & Technology, Allahabad and has also been engaged as Associate Faculty Member for Teaching the Students. She is earning Rs. 13,000 to 16,000/- per month which is sufficient for the survival of the petitioner.? It has also been stated that on 29.12.2015, the father of the petitioner came to Allahabad and tried to bring the petitioner at Lucknow but on the refusal of the petitioner, he could not succeed. The matter was also reported to the police. It has also been stated by the opposite party no.4 that the petitioner is studying in a reputed School at Allahabad. The father of the petitioner Shri Alok Saxena although claims himself to be a practicing advocate but to the knowledge of the opposite party no.4, he has no sufficient income to maintain the petitioner. An allegation has also been made by the opposite party no.4 to the effect that the father of the petitioner is a habitual drinker and the custody of the petitioner in the hands of his father would not be safe.