DBCHCP No.2998/2008 Manohar & Anr Vs.State & Ors. 1 D.B. Civil Habeas Corpus Petition No.2998/2008 Manohar & Anr. vs State & Ors. DATE OF ORDER : -27.5.2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.Anil Vyas ] Mr.Ashish Ojha ], for the petitioners. <><><> Heard learned counsel for the petitioner. The petitioner has moved this Habeas Corpus petition with the allegations that petitioners are maternal grand-father and mother of the children Rahul and Neha. Rahul born on 26.5.1996 whereas Neha born on 9.3.1999. The father of the two children died in road accident at Bombay on 13.5.2002-03 (as mentioned in the writ petition). Mother of the children died on 23.5.2006. According to the petitioners the children were residing with their mother at Jodhpur till the children's mother died on 23.5.2006. Both the children were admitted in Oxford Public School, Kamala Nehru Nagar, Jodhpur for the first time in the year 2003. In the month of July, 2007 the uncle of the children came to Jodhpur and told the petitioners that he will take the children to Spain where the uncle of children is having business. By this assurance, the uncle of the children took the children from Jodhpur. The DBCHCP No.2998/2008 Manohar & Anr Vs.State & Ors. 2 uncle of the children also gave his telephone number of Spain. However, when petitioners tried to contact the children's uncle on telephone they could not find any satisfactory reply from him. Ultimately, the petitioners came to know that children's uncle lodged the children in Orphanage at Dehradun and that is Orphanage of Shri Sh. Onkar Nanda Trust, Bhagirathi Dham, Haripur Kalan, Dehradun. The petitioners went there to meet the children but they were not allowed to meet and petitioners tried their best to meet and even they wept even then they were not allowed to meet the children. However, the petitioners are not knowing who were the persons who did not allow them to meet the children. The petitioners lodged complaint to the Police Station, Chopasani Housing Board, Jodhpur (on 27th Nov., 2007). According to the petitioners,the SHO Police Station, Chopasani Housing Board, Jodhpur has not taken any step to recover the children. Therefore, according to the petitioners, the petitioners maternal grand- children have been virtually kidnapped and are wrongly detained in the aforesaid Orphanage and, therefore, they are illegally confined. The petitioners sent notice through his advocate but the petitioners could not get any relief. It is also stated that the uncle of the children took Rs.6 lacs from the petitioners. The petitioners have placed on record the copy DBCHCP No.2998/2008 Manohar & Anr Vs.State & Ors. 3 of the progress report of Baby Neha and Master Rahul. This progress report is of the year 2003- 04. The petitioners also placed on record the Photographs of the two children (taken years ago) as well as the complaint, which they have submitted to the SHO, Chopasani Housing Board Police Station, Jodhpur and the notice sent to the children's uncle Suresh Tekchandani, State and the Police Authorities. It appears from the facts mentioned in the writ petition itself that the boy born on 26.5.1996 and by this time he is of the age of 12 years. The baby born on 9.3.1999 and by this time she is of the age of more than 9 years. No material particulars have been given in the writ petition that before death of children's father where children were residing and where they were studying. It is relevant because of the fact that father of the children died on 13th May either 2002 or 2003 not made clear in the writ petition. The children were admitted in school at Jodhpur only for the Session 2003-04 and as per the progress report submitted, the children remained in the school upto the session of 2004-05. However, according to the petitioners at present said certificates alone were available with them, therefore, they have filed the certificates of the said years. It is submitted that the children remained at Jodhpur till 2007 and in the month of DBCHCP No.2998/2008 Manohar & Anr Vs.State & Ors. 4 July, 2007, the uncle of the children took them away. Therefore, admittedly the children are not living with the petitioners since last 10 months. It appears to be a matter of claim of custody of the children by two families, which should have been resolved by approaching the court under the provisions of Guardian and Wards Act instead of moving this Court by filing Habeas Corpus petition. When the petitioners themselves handed over the custody of children to the uncle and they are admitting that children are in institution of some trust, constitution of which is not known to them and about which the petitioners did not inquire. Admittedly, since 2007, to which one year is about to pass it appears that even according to the petitioners themselves no harm has been caused to the children by the real uncle of the children. It may be true that petitioners may not be allowed to meet with the children in the institution at Dehradun, but at the same time, the petitioners did not inquire much about the structure of the said institution and its persons who are managing the trust. The children are of the age of 11 and 8 years respectively and it is not the case of petitioners that the children are in the physical custody of the respondent uncle of the children. In view of the above reason, we do not find any reason to issue any direction in this writ DBCHCP No.2998/2008 Manohar & Anr Vs.State & Ors. 5 petition filed by the maternal grand-parents of the children. The petitioners will be free to take appropriate steps in accordance with law for custody of the children where the court may examine the welfare of the children and may pass appropriate orders. It is not a case where prima facie case of illegal confinement has been made out by the petitioners. In view of the above, the writ petition of the petitioners is dismissed with liberty to the petitioners to avail other alternative remedy. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. c.p.Goyal/-