Shantadevi Bansilal Darji vs State Of Gujarat

Sonia Gokani, J

Amendment in the cause title is permitted by adding maternal grandparents of minor child respondent No.6-Vedansh Mr.Shankarlal Chauhan as

respondent No.8 and Ms.Pappuben Shakarlal Chauhan as respondent No.9.

This petition has been preferred by the petitioner under Article 226 of the Constitution of India seeking issuance of writ of habeas corpus as

grandson of petitioner No.1 nephew of petitioner Nos.2 and 3 and great grandson of petitioner No.4 is allegedly abducted by the respondent No.5 with

the help of others and is kept in illegal custody against the provision of law. Therefore, seeking the directions of production of corpus-respondent No.6

herein this petition has been preferred.

This Court on 26.11.2021 (Coram:Justice S.H.Vora and Justice Aniruddha P. Mayee) while permitting to add respondent No.7-the maternal uncle

as the party respondent passed the following order:

“1. The petitioners are permitted to add Mr. Kailashkumar Shankerlal Chauhan as party respondent no.7.

It appears that pursuant to FIR under sections 306, 498(A), 323, 294(b), 114 of IPC and under sections 3 and 7 of the Dowry Prohibition

Act registered on 22.10.2021, respondent No.7â€" complainant moved application before respondent no.3 on whose intervention

respondent no.6 Corpus minor Vednash Darji aged 5 months was put into custody of respondent no.4 and as of now, respondent no.6

minor is in custody of respondent no.4.

It appears that petitioner no.1 and 2 are accused of aforementioned FIR, whereas, petitioner no.3 â€" Ms. Renu Hemand Pawar is

paternal aunt of the minor child, who is present before this Court and she undertakes to take care of child and further she undertakes that

her husband has no objection for such purpose.

In view of above facts emerging on record and pending notice is served to the respondents, it is in the interest of justice and welfare of

minor child respondent No.6 to keep interim custody with petitioner no.3 till returnable date. The petitioner no.3 shall file undertaking today

itself for compliance of present order. It is made clear that petitioner no.3 shall maintain custody of child in best possible manner and

welfare of child and produce respondent no.6 minor before this Court on returnable date. The petitioner no.3 shall not leave limits of

Ahmedabad City till returnable date and further she shall disclose her address of Ahmedabad in her undertaking.

Notice returnable on 15.12.2021. Learned APP waives service of notice on behalf of respondent no.1. The petitioners are permitted to

serve other respondents through concerned police station. Direct service is permitted today.â€​

2.1 In view of this order, the interim custody of child respondent No.6 has been given to petitioner No.3, who also was directed to undertake before

the Court for compliance of the order and to maintain the custody of the child in best possible manner.

On issuance of notice other side appeared and Mr.Kailash Shankarlal Chauhan- respondent No.7, the maternaluncle of minor child Vedansh filed

his affidavit-in-reply contending strongly that the petition is based on completely wrong premise, the sole criteria for invoking the writ of habeas corpus

is that the corpus is kept in a wrongful confinement.

3.1 According to the respondent, the memorandum of Criminal Misc. Application No. 01 of 2021 filed in the present matter indicates clearly that

blatantly false statement has been made while mentioning the matter on 26.11.2021 before the Court. The custody of minor Vedansh was illegally

taken from the father of minor Vedansh by the respondent No.5 is the wrong statement and quite misleading.

3.2 The allegation in the memorandum of original petition that the petitioner Nos.2 and 3 and the great grandson of petitioner No.4 namely Vedansh-

respondent No.6 is abducted by respondent No.5 with the help of other respondents and police personnel and kept in illegal custody has not a

semblance of truth.

3.3 According to this respondent, the father of respondent No.6-corpus is in judicial custody from the time his sister has allegedly committed suicide.

An application came to be moved on 28.10.2021 and also sent the same on the email address of the Gujarat State Child Protection Society, which has

been also sent to this Court with a request that the same be treated as part and parcel of this pleading.

3.4 According to this respondent No.7, the original complainant of FIR No.11191005211303 filed on 22.10.2021 with Khadia Police Station, the

husband of sister of the respondent No.7 was on a run and grandfather of corpus also was on a run with minor child Vedansh. The police had been

searching the original petitioner Nos.1 and 2 together with other accused, who were not traceable and only on 23.11.2021 the father-in-law of the

deceased Laxmi and the grandfather of minor child Vedansh was caught and arrested by the police from State of Rajasthan. According to him, it was

surprising that none of the women accused was caught and arrested at that time and a minor child of about 06 months was ostensibly with the

grandfather without anyone being around.

3.5 It is further the say of the respondent that it is a wrong statement to say that from the hands of the father without following due process of law,

the custody of minor Vedansh was taken away since the father of the Vedansh was already in judicial custody since 24.10.2021 and other accused

was arrested on 23.11.2021, incorrect statements made on dated 26.11.2021 have led to the Court passing of the order of handing over the custody of

the child to the petitioner No.3. The custody of the minor Vedansh was taken over on 26.11.2021 itself and was not even joined as the respondent, he

was served only on 30.11.2021 at about 13:36 hours.

He, therefore, immediately moved Criminal Misc. Application No.1 of 2021.

3.6 According to this respondent, the grandfather of minor Vedansh was actually arrested on or about 23.11.2021 from State of Rajashtan with

Vedansh and child was brought to Ahmedabad and was kept at Shisu Gruh, Paldi, Ahmedabad. Father of his was caught on 24.10.2021 and was

already behind the bars.

3.7 It is further contended that what is germane in the present lis is that when there is a serious allegation of illegal custody by the police, it is essential

for the Court to seek the view of the police as to why the minor Vedansh was brought. Without ascertaining the same, the allegation that Vedansh

was illegally snatched from the legal custody of the natural guardian was not only misleading, but is a false statement.

3.8 According to the respondent, the Court granted anticipatory bail to paternal grandmother on 15.12.2021. Anticipatory Bail Application filed by the

petitioner Nos.1 and 2 was rejected by the Ahmedabad City Civil and Sessions Court and that fact was suppressed thus, the petitioners have not

approached this Court with the clean hands and hence, the minor’s custody needs to be handed over to the parents of this respondent No.7, who

are maternal grandparents. It is further contended that when essential ingredient for invoking habeas corpus petition is wholly absent, the petition

deserves to be dismissed in limine.

It is also necessary, at this stage, to make a mention that Criminal Misc. Application No.1 of 2021 in Special Criminal Application NO.11624 of

2021 had been moved by the respondent No.7 seeking to recall the order dated 26.11.2021 passed in Special Criminal Application No.11624 of 2021.

The respondents had also sought ad-interim order directing handing over the custody of minor child Vedansh to applicant Nos.1 and 2 after recalling

the order dated 26.11.2021 passed in Special Criminal Application NO.11624 of 2021 during the pendency of this application.

After hearing the learned advocates on both the sides, when the Court had peremptorily fixed Special Criminal Application No.11624 of 2021 for

final hearing, this application is disposed of as per the request of the applicant-respondent No.7. It is also the say of this respondent that deceased

Laxmi, his sister was a very brilliant girl with a good educational qualification and therefore, the best interest of the child would be with the maternal

grandparents.

Both the sides have shared the photographs and also have put forth their respective submissions elaborately. In wake of the Court fixing the main

matter to be taken up for hearing, the application for recall has not been pressed.

The report of the police dated 02.01.2022 in detail also has been brought on the record. According to the Police Inspector, Khadia Police Station,

the chronological details are available as to how the attempts had been made to trace the accused and they were not found. Not only that but, on

16.11.2021 when the entire team had gone to find the whereabouts of the accused and the minor child, nothing could be known. The Additional Police

Commissioner, Sector-1, and other team of Police Officials had gone to State of Rajashtan at village Nimbla, Taluka Shiv, District Baadmer where the

paternal grandfather Bansilal Darji had gone away with the minor child of five months and on 23.11.2021, at around 11 O’clock in the night, they

were brought to the Khadia Police Station. The report was also sent to Gujarat State Child Right Committee, which is known as Shishu Gruh, Paldi.

7.1 It is the say of the police that after the death of Laxmi, the complainant had written to Gujarat State Child Right Committee, Gandhinagar and the

said Child Right Committee had sent this communication on 29.10.2021 to Khadia Police Station, which had sent a letter to the Investigating Officer,

who had also remained present before the Committee, yet another notice of adjourned date of 17.11.2021 was sent.

7.2 Therefore, on 17.11.2021 this police officer and Additional Police Commissioner, Shri R.V.Asari, Sector-1 had remained present before the Child

Right Committee. Thereafter, according to this report, the team had gone to State of Rajasthan and on 23.11.2021, the paternal grandfather was

caught. The Commission had directed the custody of the child to be given to Shishu Gruh, Paldi and the Officer himself had gone to leave Vedansh on

24.11.2021 at around 01 O’clock. Banshiram Darji had confided that his wife and his son Bhomaram’s wife and Vedansh had gone under the

fear of the police arrest locking their residence and they had gone to Baadmer to his in-law’s place, they had stayed Kaluram Chaudhary’s

farm where the child was looked-after by his wife Shantadevi and daughter-in-law Durgadevi.

7.3 On 23.11.2021 when he came to know that the police had come from Ahmedabad, he had taken the child with him before the police and his

daughter Renu has been given the custody by the Court. The report further says that the applicant Shantadevi and Durgadevi have been granted

anticipatory bail by the High Court on 18.12.2021, they had been arrested by the Khadia Police and from the police station only they have been given

the anticipatory bail. The charge-sheet is already filed on 20.12.2021 against Piraram Darji, Bansilal Darji, Shantadevi and Durgadevi and Additional

Chief Metropolitan Court No.16, Ghee Kanta, Ahmedabad is in seize of the matter.

It is necessary to make a mention at this stage that affidavit-in-rejoinder has been filed by the petitioner No.3 where she has denied all averments

set out by the respondent No.7. It is her say that false statement on affidavit has been made mentioning that there has been urgent circulation moved

on perusal of the video of live streaming recorded on 26.11.2021. It is clear that the Court had specifically asked to the learned advocate the

whereabouts of the father of the minor child and he has responded that the father of the minor child is behind the bar. The query has been raised by

the Court that the father was not available and there are baseless allegation made against the learned advocate without verifying the entire detail and

respondent No.7 since could not find the a good reason on merits for assisting the Court, he adopted a different root of making a false and baseless

allegations.

8.1 No legal proceedings had been initiated by the respondent No.7 promptly for seeking custody of the minor from the respondent No.4 and he left

the minor at the mercy of the respondent No.4 for about a period of three days, he is not shown any reason for not taking him back. The minor child

cannot be handed over to respondent No.7 as his natural guardian is still alive and there are number of family members who are capable to look-after

him. There is nothing to indicate as to how he can be handed over the child, moreover, the petitioner Nos.1 and 2 both have been granted anticipatory

bail and the conduct of respondent No.7 needs to be deprecated.

It is quite apparent from the chronology of events that the daughter-in- law of the petitioners and sister of the respondent No.7 and mother of

corpus respondent No.6 committed suicide unfortunately on 21.10.2021. It is alleged that her husband had illicit relationship and she was frequently

being harassed physically, mentally and emotionally. On that fateful day, between 13:30 to 17:00 hours, while she was alone at her matrimonial home

with the child she had hanged herself. This was intimated to her family, it was registered as Accidental Death Case No.18 of 2021 under Section 174

of the Code of Criminal Procedure and her dead body was taken for postmortem when her parental side was given the custody of the dead body, they

made a request for the same to be kept at cold storage of postmortem room and intended to lodge an FIR. Accordingly, FIR had been lodged and as

the husband was absconding and so were other in-laws, it had been insisted that only after they are caught, the dead body would be accepted. Piraram

was caught on 24.10.2021, his arrest had followed by the remand application and he was given three days of remand. Eventually, he was sent to the

judicial custody. The family of the deceased was persuaded to accept the custody of the dead body and on 25.10.2021 eventually it was handed over.

On 29.10.2021, for getting the custody of the minor child Vedansh, the Gujarat State Children Right Protection Committee, Gandhinagar was

approached, which had sent a notice to Khadia Police Station and the detailed report was directed to be tendered to the Committee. After couple of

dates on which the police officer had remained present, they could formulate a team and respondent No.6 Vedansh was found with the accused

Bansilal paternal grandfather and on 23.11.2021 he was brought from Rajasthan to Ahmedabad. The report was sent to the Child Commitee and the

opinion was also sought as to where should the child be kept and eventually, he was produced before the Chairman, the Child Welfare Committee,

Odhav, Ahmedabad, who then had sent minor Vedansh to Shishu Gruh, Paldi and on 24.11.2021 at 13:00 hours Vedansh was sent to Shishu Gruh,

Paldi.

10.1 The report says that Bansilal was also with them when the child was handed over to Shishu Gruh, Paldi. He was arrested thereafter on

24.11.2021 at 16:30 hours and he had confided as to how they had gone from post to pillar apprehending the arrest. They had also stayed with only

five months old child in a farm of Kaluram Chaudhary. His wife and son Bhomaram and daughter-in-law Durgadevi had gone away somewhere,

when they came to know about the visit of the police and he remained present with Vedansh before the Police.

In this backdrop of facts, very quickly, the very family from whom the child was taken by the Khadia Police had moved this Court making a

request for the custody of corpus to be handed over to the family having been allegedly detained by the police at the behest of the respondent No.7.It

is necessary to make a mention that initially when the petition was filed, the custody was said to be of all police personnells and the Secretary, Gujarat

State Child Protection Committee. The respondent No.7 had been added later on and all officials are alleged to have abducted the child and detained

the corpus in their custody. As rightly pointed out to this Court, the very petition is ill conceived and by not revealing all the correct facts before the

Court, attempt is made to get the custody of the child. Knowing fully well that the respondent Nos.1 to 5 all in official capacity have acted, the

petitioners could have approached those authorities for the custody of the child. Instead of so doing, when the custody was given to the Shishu Gruh,

Paldi on 23.11.2021 and the paternal grandfather was arrested on 24.11.2021, who was with the child till custody was handed-over to Shishu Gruh,

Paldi, by stating that it was an illegal detention of the child and the custody of his was taken from the natural guardian and father, who was already

arrested on 24.10.2021 and was in the judicial custody, this petition has been preferred.

Article 226 of the Constitution of India permits the Court to intervene in case of the custody of the child in appropriate case. In case of Yashita

Sahu vs. State of Rajasthan, reported in 2020 AIJEL-SC 65636, the Apex Court has in no unclear terms stated that the jurisdiction of this Court under

Article 226 of the Constitution of India in the case of the child custody is no longer alien to the Court hardly requires any debate at the same time.

In the opinion of this Court to approach this Court with a reckless and baseless allegation that the action of the respondent Nos.1 to 5 illegal of

taking over the custody of the minor as a consent of family members of respondent No.6 had never been obtained and no proper procedure had been

adopted for taking the custody of the child is itself unsustainable. The petitioners could have always approached the concerned Committee and the

police authority. Challenging the direction of the committee also was permissible. At para 8 of the petition it has been averred that Mr.Bhagirath Patel

was requested to get the information through RTI from the office of respondent Nos.2 and 3 for which he had applied under the RTI on 24.11.2021

and visited the office for obtaining information promptly, however, as mentioned further no reply was given and therefore, they had approached this

Court on that very day!!. In the opinion of this court, this is nothing but a very deliberate misuse of the writ jurisdiction, more particularly, when the

petitioners were in known of entire details, they chose not to join even private respondent No.7 in this.

Even if, the petitioners have had the custody of corpus because the sister of respondent No.7 and daughter of respondent Nos.8 and 9 Laxmi had

committed suicide at matrimonial home, the fact remains that they continue to be arraigned as the accused. If the maternal uncle had sought the help

of the officials and the Child Right Committee which is meant for the welfare and safety of the children, custody surely does not become illegal.

It is a different aspect that the issue of the custody could have been adjudicated by a proper forum by the petitioners having approached those

forums, it has not chosen to so do it and before even the respondent no.7 at whose instance the child was sent to the Shishu Gruh, Paldi moves the

concerned Committee and makes a request, it has already approached this Court and obtained an interim custody.

Considering the best interest and welfare of the child as ultimately that is the vital and essential parameter for handing over of custody, the Court

needs to remember at this stage that the sister of respondent No.7 had died at a very young age, she was preparing herself for the competitive

examination, she was very young and unfortunately ended life. The father and the natural guardian of the respondent No.6 is in the jail and

grandparents are also arraigned as accused, their irresponsible behavior is quite apparent as they had gone away for about more than a month and also

were staying in the field with the young child. The best course could have been to approach the Court and seek the anticipatory bail instead of that,

they had gone away for a long time making the condition of the child quite vulnerable, moreover, the trial is yet to take place. It is not known as to how

and what shape it is going to take more particularly, when the death of daughter of respondent Nos.8 and 9 is within seven years of marriage of the

mother of corpus Vedansh, more particularly, with presumption under Section 113 A and B of Evidence Act getting attracted. Again, father as a

natural guardian is behind the bars and his own fate is unsure due to pending sessions trial.

In every which way, the nature of allegations and the circumstances would require that the custody of the child should be with the maternal

grandparents. The respondent No.7 is the first informant of the matter as his real sister has committed suicide. He, therefore, has been arraigned as a

party respondent. We have chosen to add the maternal grandparents as the parties here, who are not so old and are more than willing to take the

custody of the minor child. They have also their independent source and live in a joint family. They would have the best interest of the child at their

heart, and noticing from every angle, let the custody of the child be with the maternal grandparents till any other competent Court decides otherwise.

Parties shall be at liberty to agitate the issue of permanent custody of minor child Vedansh before the competent court as provided statutorily.

None of the findings and observations in such an eventuality shall prejudice the rights of the parties, as that shall need to be established independently

before the Court concerned.

Let the custody of the minor child Vedansh be handed-over to the maternal grandparents in presence of Mr.Joshi, Registrar, City Civil Court,

Ahmedabad on 07.02.2022 at 02:30p.m. It shall be reported to the Registry of this Court and the same shall be intimated to the Child Welfare

Committee.

Request has come from the learned advocate, Mr.Nirav Sanghavi in the second sitting not to implement this order to enable the petitioner to

approach the Apex Court. For the reasons mentioned and noticing all the circumstances we have narrated in our order, we do not accede to this

request.

Writ is permitted to be given to respondent No.7.

With the above findings and observations, present petition stands disposed of.