TABASSUM BANO Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE expose of the factual matrix has its own unconventional singularity and does manifest special individual characteristics necessitating a keen scrutiny of the nuances of law relating to a writ of habeas corpus on one hand in relation to a claim pertaining to the custody of the female child by the petitioner on the substratum that she is the natural mother and hence, has the absolute right to have the custody and the private respondents have no legal right in the remotest sense to advance a claim and on the other, the negation of the same by the respondent Nos. 3 and 4 on the fulcrum that there is no illegal detention and further on the sub-structure that regaining of custody by the petitioner is not a routine matter bereft of consideration of the welfare of the child which is paramount and is also to be taken note of in a writ of this nature.

(2.) THE facts which are imperative to be stated are that the petitioner had entered into wedlock with one Usman Mansuri who died in the year 2004. After expiration of four months, she gave birth to a female child on 6-10-2004 at orai in the clinic of one Dr. Sandhya Gupta. A birth certificate in that regard has been brought on record as Annexure P-1. A further document, namely, 'jachcha bachcha Raksha' card has also been brought on record as Annexure P-2. Due to the death of her husband, the petitioner suffered from depression and in such a situation Dr. Sandhya Gupta, after having dialogue with the elder sister of the petitioner, Zarina Bano, gave the custody of the child to the respondent No. 3 with an understanding that as soon as the petitioner would recover, the female would be returned to the petitioner. It is put forth that the respondent No. 3 is the friend of one Manoj Jain who is the brother of Dr. Sandhya Gupta and that is how he came into the picture. Zarina Bano, as set forth, had handed over the child, Ku. Alia, to the respondent No. 3 with an understanding that she would be given back to her younger sister as soon as she recovered from her illness. After recovering from illness the petitioner demanded her child to be given back to her from the respondent No. 3 who informed that she was living with the respondent no. 4 at Yadgar Chowk, Cantt. Sadar, Jabalpur and asked for the child but the respondent No. 4 refused to part with the child. The aforesaid circumstances led her to file an application under Section 98 of the Code of Criminal Procedure before the Sub Divisional Magistrate, Jabalpur who, after recording certain statements, directed restoration of the child to the petitioner by order dated 29-7-2008. Being dissatisfied with the said order, the petitioner preferred a revision before the learned Sessions Judge, Jabalpur who set aside the order as per Annexure P-10 on 19-10-2008. Reference has been made to the statement made before the Sub Divisional Magistrate, Jabalpur. There is an assertion that an application for review was filed before the learned Sessions Judge wherein the respondent Nos. 3 and 4 filed a false birth certificate of the child, Ku. Alia @ ku. Vanshika, as per Annexure P-11.

(3.) IT is contended that as per the legal advice, the present habeas corpus petition has been filed seeking restoration of the child. It is pleaded that the respondent No. 3 is having his married wife, Sujata Pillai, and as they were issueless, they have adopted one Vanshaj from some Christian Association. The respondent No. 4, Asha Pillai, is not the legally married wife and is living in the servant quarter No. 16 and the respondent No. 3 has illicit relationship with the respondent No. 4. It is urged that Ku. Alia has been named as Vanshika by the respondent No. 3 who is the daughter of the petitioner and she was taken by the respondent No. 3 from Orai when she was one month old. It is put forth that the refusal to return the custody of Ku. Alia tantamounts to illegal detention of the child. It is highlighted that the petitioner is a Post Graduate having Masters degree in Music from Indrakala Sangeet Vishwavidyalaya, Khairagarh and is a part time teacher imparting education in music at Bundelakhand Kala Sangeet post Graduate Music College. She is also giving her services in the clinics of Dr. Manoj Diwolia and Dr. Anil Gupta. From all the three sources, she is earning about Rs. 20,000/- per month and has a very good family background and is capable of looking after the child. It is contended that Ku. Alia was given to the respondent No. 3 without the consent of the petitioner and, therefore, she is illegally detained by the respondent Nos. 3 and 4 and hence, a direction should be issued to handover the child. Ku. Vanshika, to the petitioner.