BUDHULAL SHANKARLAL Vs. AN INFANT-CHILD NOT NAMED

JUDGEMENT

(1.) THIS is a petition under Section 491, Criminal Procedure Code, for release of an infant (not yet named) aged about three months from the custody of Kallu and smt. Tarabai (respondents 2 and 3 respectively ).

(2.) IT is, alleged in the petition that the petitioner is the father of the child. The child was born on August 18, 1970. Almost immediately after the delivery, the child's mother (the petitioner's wife) died. As the petitioner had to perform the last rites of his wife, he handed over the custody of the child to Kallu and his wife, tarabai, (hereinafter called the respondents) at the Lady Elgin Hospital for temporary care. These respondents are friends of the petitioner. There was an understanding between the petitioner and the respondents that the child would be restored to the petitioner as soon as the last rites were completed. It is then alleged in para 5 of the petition as follows:--"that after finishing the last rites, the petitioner demanded back the custody of respondent No. 1. Respondent Nos. 2 and 3 refused to hand over the custody of respondent No. 1 to the petitioner. " it is further alleged that the petitioner lodged a report in Ranjhi Police Station house on November 7, 1970. The petitioner is a Government employee and has sufficient means to bring up the child.

(3.) IN the return filed by Kallu and his wife, it is admitted that the petitioner is the natural father of the boy. It is, however, alleged that when the petitioner's wife died on the labour table, the petitioner took the custody of the dead body but refused to take into his custody the boy from the Lady Doctor who was on duty in the hospital, saying that there was nobody to look after the child in his house. Since the respondents were present there and they are without any issue, they offered to take the child in their custody to bring it up as their own son. The Lady doctor, with the consent of the petitioner, gave the child to the respondents. The petitioner had no money to perform the last rites of his wife. Kallu respondent paid him Rs. 100/- in the hospital for that purpose. The boy was only 3 pounds in weight at the time of his birth. The respondents have been taking the child to Lady dr. A. K. Kamdin for his treatment and he is still under her treatment. They have filed a certificate given by Dr. Kamdin, which shows that she has been treating the child for 2 1/2 months. The respondents have spent a lot in the up-brining and treatment of the child. Dr. Kamdin's hospital is about 7 miles from their residence. On November 4, 1970, the petitioner demanded Rs. 500/- from Kallu respondent, which could not be met by him. This caused displeasure to the petitioner. On the 6th November, the petitioner went to the house of the respondents on a motor bicycle, along with his friend. He asked Smt. Tarabai to get him a glass of water. When she went inside for that purpose, the petitioner and his friends lifted the child and ran away. The matter was reported to the Security Officer, Col. Inderdev, with whose intervention the custody of the child was restored to the respondents. It was after this incident that the petitioner lodged a report in the police Station and filed this petition.