RUDRA PANDEY Vs. STATE OF U.P.

JUDGEMENT

(1.) This habeas corpus petition has been filed on behalf of Sri Rudra Pandey, a minor aged about 8 years, son of lade Sri Sumit Pandey by his next friend, his mother Smt. Neha praying to issue a writ, order or direction in the nature of habeas corpus to produce the petitioner (corpus) from the illegal custody of opposite party Nos. 4 and 5 and to hand over his custody to her as she being the natural mother, is entitled for the custody of the corpus.

(2.) The petitioner in her petition has stated that petitioner No.2 was married to late Sri Sumit Pandey in the year 2010. Her husband Sri Sumit Pandy was the son of opposite party No.4 and was a practicing lawyer at Civil Court, Allahabad. Due to their wedlock, petitioner No.1- Rudra Pandey was born on 09.02.2010. Sumit Pandey was murdered on 23.07.2016 by unidentified assaultants at Allahabad. Death certificate issued pertaining to his death on 29.09.2016 is placed on record. It is further stated in the petition that after the death of her husband i.e. Sri Sumit Pandey, petitioner No. 2 was not properly looked after by her in-laws and her relation with in-laws became strained and she moved to her parents' house at Lucknow and started residing there. Petitioner No.2 married second time with Ashish Kumar Dubey, who is doing a private job at Satna (M.P.). Petitioner No.2- Smt. Neha is now residing at her parents' house and her husband Ashish Kumar Dubey also resides with her. It is further stated in the petition that opposite party Nos. 4 and 5 took custody of petitioner No.1 illegally, long after the death of her husband and when she requested to opposite party Nos. 4 and 5 to hand over her son, they assured that the custody of her son will be handed over to her in the first week of October, 2018, but they subsequently refused and threatened her not to talk about the custody of the corpus. According to the petitioner, the corpus has been illegally detained by opposite party Nos. 4 and 5 and is not being given to petitioner No.2. who is the mother and natural guardian of the corpus. It is further stated that the welfare of petitioner No.1 (corpus) cannot be looked by opposite party Nos. 4 and 5 in absence of the mother and they want to grab the property of the corpus and there is a danger that the corpus can be eleminated as opposite party No.4 has got huge movable and immovable properties and petitioner No.1 (corpus) is expected to inherit the same. The age of the corpus is about 8 years and therefore, she being the natural and biological mother of the corpus, is entitled to the custody of her son.

(3.) Notice was issued to opposite party No.4 and a counter affidavit submitted by him stating therein that writ petition is not maintainable as the same is with regard to the custody of a minor child, who is living along with his grant parents after he (corpus) was abandoned by petitioner No.2 (mother), who is now claiming the custody of the corpus on the basis of his natural guardian. It is further stated in the counter affidavit that the corpus is living with he grand parents after being abandoned by her mother, who had solemnized second marriage with a person, who had children from his earlier wife and the petitioner herself could not manage the two families at a time, which may also adversely affect the mental state of the corpus. The corpus was willingly abandoned by his mother (petitioner No.2), soon after the death of the son of opposite party No.2 (Husband of petitioner No.2) and since then the corpus is being taken care of by opposite party No.4, who is the real grand father of the corpus. The corpus is studying in a reputed school at Allahabad i.e. Army Public School. The custody of the corpus with his grand parents could not be termed as illegal more so on the ground when the corpus was abandoned by the petitioner No.2. It is further stated that soon after the death of the son of opposite party No.4, petitioner No.2 left the house in odd hours along with huge amount, which was provided by the State Government for the welfare of the corpus. Since the solemnization of her second marriage, she has not taken care of the corpus and abandoned him and there is no chance that the second husband of the petitioner No.2 will accept the corpus in presence of his own two children from his earlier wife and therefore, the welfare of the corpus is in not transferring his custody to the petitioner No.2, as corpus is emotionally attached with opposite party No.4 and his wife.