IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.515 of 2011 Krishna Prasad, S/o-Late Deo Nandan Ram, resident of Compounders Quarter No.8, PMCH, Patna, P.S.-Pirbahore, District-Patna. –Petitioner. VERSUS 1. The State of Bihar, through the Director General of Police, Police Headquarter, Patna. 2. The Inspector General of Police, Patna Range, Patna at Patna. 3. The D.I.G. of Police, Patna Division, at Patna. 4. The Sr. S.P., Patna, District-Patna. 5. The City S.P., Patna, District-Patna. 6. Dy S.P. (Town), Patna, District-Patna. 7. The Officer-In-Charge, Alamganj Police Station, District-Patna. 8. Pranita Kumari, W/o-Sunil Prasad, resident of Mohalla Gaighat, Bajrangpuri, near the house of Sumanjee, Guljarbagh, P.S.-Alamganj, District-Patna. 9. Sunil Prasad, S/o-Sri Mahto, resident of Mohalla Gaighat, Bajrangpuri, near the house of Sumanjee, Guljarbagh, P.S.-Alamganj, District-Patna. -Respondents. ----------- For the Petitioner : Mr. Suresh Prasad Singh No.1. Mr. Vijay Kumar Singh. For the private-respondents : Mrs. Renuka Sharma Mr. Rajeev Ranjan Prasad. For the State : Mr. Abhinay Raj, AC to AAG-2. ------------- 06 12.08.2011 The petitioner, by the present writ application which is in the nature of Habeas Corpus, claims recovery of his minor son, namely, Rohit Raj aged about 7 years from illegal confinement of respondent nos.8&9, who are respectively petitioner’s sister-in- law and brother-in-law, being the brother of his deceased wife, Rani Devi. The facts are not in controversies which are as follows. The petitioner married Rani Devi on 20.04.1979. The petitioner alleges that for several years she could not bear a child and, allegedly, with her consent petitioner married a second time. 2 From this second marriage he has two sons and a daughter. From what is stated in the paragraph-6 of the writ petition, it appears that Rani Devi, the first wife, then started living with respondent no.9, her own younger brother, namely, Sunil Prasad for which petitioner had to pay for her maintenance. It appears that subsequently petitioner agreed to take back his first wife, Rani Devi and as a coincidence she was now blessed with a son, Rohit Raj on 22.03.2004 after 25 years of marriage. It may be noticed here that by now the children from the second marriage have grown up, the daughter has been married and the two sons are in College. It appears that in the beginning of this year Rani Devi, being unwell and being constantly mistreated, was again thrown out of her matrimonial house but without the child, Rohit Raj. She complained to the police and with police help on or about 26.02.2011 she was able to pick up her child, Rohit Raj and continued living with her brother, respondent no.9 and his wife respondent no.8, who have their own young children. Rani Devi complained that she had been seriously ill but had been neglected by her husband, the petitioner. She now got herself examined whereupon it was disclosed that she was apparently suffering from the Cancer of the Gallbladder. Allegedly, the petitioner even though is an ambulance driver at the Patna Medical College & Hospital did not arrange for her treatment and, allegedly, neglected her and left her to die. The private-respondents tried to 3 treat her but it was too late and on 14.04.2011 Rani Devi, the first wife of the petitioner, died while being brought to the Patna Medical College & Hospital for treatment in a critical condition. It appears that coming to know of the aforesaid death petitioner suspected that she might have been poisoned by her brother got postmortem done. The report whereof is not available to him but on his behalf it is stated that it was not a case of poisoning or any unnatural death. Petitioner alleges that he tried to persuade respondent nos.8&9 to permit the son, Rohit Raj to perform the last rites but they refused. He then tried to get police assistance to recover his son but failed. Hence, he has filed the present writ petition for recovery of his son. At first sight to us it seemed that it was a matter relating to custody of a minor and ordinarily the minor child should be in custody of his parents. But, on notice being issued respondent nos.8&9 have appeared and filed their counter affidavit making out a case that during her entire life time Late Rani Devi, the first wife of the petitioner, was grossly mistreated. She was utilized as a maid. Unfortunately, she gave birth to a son and her mistreatment and misfortunes grew so much so when she was critically ill petitioner neglected her treatment and left her to die. From time to time private-respondents used to give shelter to their elder sister and also looked after the child. In the counter affidavit, apart from others it was also stated that during her life time Late Rani Devi had desired that the child be kept by them 4 (respondent nos.8&9) fearing for his life at the hands of the petitioner and his stepmother and stepbrothers. The child Rohit Raj is the only legitimate child of the family. In the counter affidavit, they have categorically stated and annexed that they have already filed a case under the Guardianship Act before the Principal Judge, Family Court, Patna, being Guardianship Case No.23 of 2011, on or about 07.05.2011 for being appointed as lawful guardian in respect of Rohit Raj as petitioner had disentitled himself of being the guardian. Upon hearing the parties, it seems to us that it is a human problem more than a legal problem. In order to satisfy ourselves about the welfare of the child which is our only concern, we asked the parties to appear in Chambers with the child to understand the grievances. We talked to the parties one by one and talked with the child alone after making him comfortable. One thing we found was that the child was mortally afraid of his father and refused to live with him. He expressed his views to live with his Mama and Mami (respondent nos.9&8) respectively. Having noted this we reserved orders in the case. Ordinarily, as the matter is before the competent Guardianship Court, we should not interfere in this jurisdiction, but as noted above, our immediate concern was the welfare of the child. It appears that as between the two, that is, the father and the uncle, there has been a serious difference for several years, if not decade, and now after the unfortunate death of Rani Devi, the 5 mother of the child, Rohit Raj, is the victim of the differences. He is a young innocent boy of tender age. The father, the petitioner, accuses the private- respondents of trying to take custody of the boy only for the sake of money. He alleged that even during the life time of Late Rani Devi they had kept her because petitioner was made liable to pay maintenance to her. Having talked to the parties, we think that this is wrong. The private-respondents are young and they have their own children as well. Respondent no.8 is a school teacher and respondent no.9 her husband does small work and two of them are able to meet their needs. They have categorically stated that they do not expect any financial support from the petitioner for caring, bringing up and educating their nephew, Rohit Raj. They will not demand any financial assistance from the petitioner. They will continue to take care of him as their own son who is near about same age. We believe on their statement that Rohit Raj should be permitted to grow up in company of other children rather than live with his father who is married again and stepbrothers who are College going and grown up. Their apprehension that Rohit Raj may be neglected cannot be said to be totally unfounded because Rohit Raj technically is the only legitimate child of the petitioner and the other being born out of second marriage during life time of the first wife. In our view, as the matter is before competent Court in 6 matter of Guardianship, we propose to make only order with regard to interim custody, which would be subject to the final orders passed by the Guardianship Court after a thorough enquiry into the matter. Considering the facts as noted above, we are of the opinion that the interim custody of the child be continued in the hands of his uncle, that is, respondent nos.9&8, keeping in view the paramount importance of welfare of child and his security, but at the same time we would like to caution these respondents that they must understand that the child is of a tender impressionable age and they must not seed his mind with hatred towards his father because whatever be the ultimate decision of the Guardianship Court the fact would remain that the child, Rohit Raj is the biological son and the legitimate son of the petitioner. Every child must have a family otherwise it could have drastic effect on the psychi of the child when he grows up. However, while granting the interim custody of Rohit Raj to respondent nos.9&8 respectively, we make it clear that petitioner being the father cannot be denied visitation rights within the site of respondent nos.9&8 respectively. It would be open to the petitioner to move the Principal Judge, Family Court before whom the Guardianship matter is said to be pending for appropriate orders with regard to visitation rights who would consider it in correct perspective and pass orders at the earliest pending final disposal of the matter in accordance with law. The 7 private-respondents, as stated by them, before the Court would not demand anything or any money from the petitioner for caring and bringing up the child and at the same time because of that they would not deprive the child in any manner and would treat him as they would treat their own child. This would of course not mean that the child would lose of any of his inheritance rights. With these orders and directions and with the direction to the Principal Judge, Family Court, Patna to dispose of the proceedings at the earliest we disposed of the writ petition. Ashwani Kumar Singh, J.- Trivedi/ (Navaniti Prasad Singh, J.) I agree. (Ashwani Kumar Singh, J.)