LALIT MOHAN Vs. STATE OF PUNJAB AND ORS.

JUDGEMENT

(1.) The present petition has been filed for issuance of a writ in the nature of habeas corpus under Articles 226/227 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for issuance of a roving writ for appointment of a Warrant Officer with a direction to get release the petitioner's son namely Madhav, who is in the illegal custody of respondents No.4 to 6 as his life and liberty is in danger.

(2.) The petitioner was married with Poonam, the daughter of respondent No.5. She died on 03.11.2008. Respondent No.5 lodged the criminal case vide FIR No.157 dated 03.11.2008 under Section 304-B of Indian Penal Code (for short "IPC"), Police Station Tapa against the petitioner, his brother and parents. The petitioner and his parents were convicted. The petitioner was sentenced to undergo rigorous imprisonment for life and his parents were sentenced to undergo rigorous imprisonment for a period of 10 years. The petitioner preferred an appeal against his conviction. During the pendency of the said appeal, his sentence was suspended vide order dated 07.04.2014. After getting bail, he contacted respondent No.5 to hand over the custody of his minor son but was shocked to know that his son has been residing with respondent No.4, who has even changed his father's name. Madhav is the legitimate son of the petitioner and he has a right to get his custody. He moved the representation (Annexure P-4) but of no avail. Hence, this petition.

(3.) Respondent No.5 contested the petition by raising the preliminary objection that petition is not maintainable. It is pleaded that there is a specific remedy before the Civil Court under the Guardian and Wards Act, 1890 (hereinafter referred to as "Act, 1890". It was further pleaded that the custody of minor Madhav was handed over to the maternal family by the SHO, Police Station Tapa in the presence of the relatives of both the sides vide Daily Diary Report (Annexure R-1). The father's name of the minor was never changed, rather that was a mistake on the part of the school authorities, which has been corrected later on.