Shital Kumar Jha vs State Of Madhya Pradesh

Pursuant to the order dated 18.02.2019, the corpus Ku.Shanbhavi @ Laxmi Jha has been produced before this Court who is 6 years of age. The undisputed facts in this case are that the petitioner is father and thus the natural guardian of the corpus. The respondent no.5 is maternal grandfather of the child. It is also undisputed that the child was taken from the custody of the petitioner on 10.08.2018 at Police Station-Bhalumada within the premises of Police Station-Bhalumada, District-Anuppur and handed over to the respondent no.5. It is also undisputed that since 10.08.2018 the child has been with the respondent no.5. Besides these, there are no other undisputed facts in this case.

The child corpus is a witness to the murder of her mother and her aunt by her uncle. The petitioner was working at Delhi at the material point of time. The corpus was living in a joint family along with the parents and brother of the petitioner when the incident took place. At the time of the incident, the parents of the petitioner are stated to be not at home. The uncle of the corpus, the accused-Nirmal Kumar is presently in judicial custody, the charge-sheet has been filed against him and the charges have been framed and the case is at the stage of recording the evidence for prosecution. The next date of hearing is 25.03.2019. Learned counsel for the petitioner has submitted that the child was taken from his custody at the police station on the basis of massive pressure and influence being brought to bear upon him to handover the child to the grandparents. There is no evidence with regard to the same being true but for an allegation to that effect. Learned counsel for the respondent no.5, on the other hand, has submitted that at this stage it is the welfare of the child that is of paramount and one cannot go by the technicalities of law in assessing as with whom the child interest is best served. In support of his contention, the respondent no.5 has placed before this Court the judgements of the Supreme Court passed in Nil Ratan Kundu and Another Vs. Abhijit Kundu reported in (2008) 9 SCC 413. The facts of Nil Ratan Kundu (supra) are that the respondent in that case the Abhijit Kundu, he was accused of assaulting the mother of the corpus which resulted in her death. He was undergoing trial for offences under sections 498-A and 304 of IPC. During the pendency of the case, after the respondent was enlarged on bail, he filed an application under the Guardianship and Wards Act seeking custody of his child. The appellants before the Supreme Court who are the maternal grandparents of the child opposed the application on the ground that the welfare of the child is served better while in the custody of the grandparents as it was on the date of the application filed by the respondent under the Guardianship and Wards Act. The trial court, however, allowed the application and held that the respondent was a natural guardian of the child and that the present and future of the child would be better secured in the custody of the respondent-Abhijit Kundu. Ultimately, when the case came up before the Supreme Court, the Supreme Court held in the favour of the petitioner who were grandparents of the child on the ground that as the father was an accused in a criminal case, it would be better to give the custody of the child to the maternal grandparents. The second case which has been referred to by the learned counsel for the respondent no.5 is Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and another reported in 1984(3) SCC 698, in that case, there was an order of the English Court regarding custody of the minor child which was obtained by the mother of the child. The father of the child brought the child back to India and a writ of habeas corpus was filed in the High Court for production of custody of the child. The High Court dismissed the writ petition and held in favour of the father, who was the respondent before the Supreme Court. Therefore, the Supreme Court held that the English Court having most contact with the issue, held that its order was binding upon the Indian Court and handed over the custody to the appellant-Smt. Surinder Kaur Sandhu (supra). The third judgement referred to by the respondent no.5 is Mausami Moitra Ganguli Vs. Jayant Ganguli reported in (2008) 7 SCC 673, in that case, the Family Court gave custody custody of the minor to the mother Mausami Moitra Ganguli. On appeal by the father, the respondent before the Supreme Court, the High Court set aside the order of the Family Court and granted permanent custody of the child to the respondent-father and only visitation right to the mother.

Learned counsel for the respondent no.5 has relied upon the finding of the Supreme Court in para-19 of the judgement passed in the case of Mausami Moitra Ganguli (supra) in which the Supreme Court has held while determining the question as to which parents must have the care and control of the child, the first paramount consideration for the interest of welfare of the child and not the right of the parents under statute.

Learned counsel for the petitioner has referred to a judgement of passed by the Division Bench of this Court passed in the case of Sheo Kumar Ram Prasad Tiwari Vs. Smt. Shivranit Bai and others reported in AIR 1966 MP189, in this case, the facts of this case are that the father of the minor child was residing at Burhanpur and was employed as a peon at the Tahsil Court at Burhanpur as he was required to go back very often after his wife death, he entrusted his minor daughter to the care of the respondents who were the neighbors and with whom he was in family terms. When the father asked the respondents to return the girl, they refused and so the father on 09.04.1964 filed an application under section 25 of the Guardianship and Wards Act for restoration of child custody to him alleging that the respondents had not given proper education. This Court has held once the minor is restored to the custody of the father i.e, his rights over the minor are no doubt are subjected to the provisions of Guardian and Wards Act.

Learned counsel for the respondent no.5 has voiced a legitimate concern in this case. He has submitted that the child is sole eye witness to the murder of her mother and aunt by her uncle. He further state that the petitioner herein is real brother of the accused and filial affection may come in the way and the child may be tutored to change her statement before trial Court. The concern voiced is not baseless.

The judgement which have been cited by the learned counsel for the respondent no.5, by no stretch of imagination are applicable in the facts and circumstances of the case. In the case at hand, the only difference being, there was an order passed the Court of competent jurisdiction with regard to the issue of custody and after which the case had gone to the Supreme Court, where it has finally reversed the order passed of the Court competent jurisdiction for the reasons stated in that case. In the other two cases, the dispute was between two natural guardians. Here it is stated above, the petitioner is the natural guardian and the respondent no.5 is the maternal grandfather. There is no finding by any court of competent jurisdiction till date, as to whose custody the interest of the child is best served. Therefore, the contention of the learned counsel for the respondent no.5 that the child's welfare in the custody of the petitioner would be jeopardize would be completely unfounded and is rejected. The said allegations involve intricate questions of fact which has to be tried before a competent Court and only after recording evidence, can any court, come to the conclusion that whether the custody of the child with the petitioner would be against her interest. In the case cited by the learned counsel for the respondents in each of those cases there was an order from the court of competent jurisdiction which had gone into the facts of those case and passed an order. In this case it is yet to happen.

The SHO of Police Station-Bhalumada and the SDOP have appeared in person before this Court. The SHO, Mr. Manoj Dixit has informed this Court that the next date hearing before the trial Court is 25.03.2019 and the case is fixed for evidence on behalf of the prosecution.

Under the circumstances, this Court passes the following directions:-

Till the next date of hearing, the child shall be kept at the Child Welfare Home at Shahdol. The S.P or SHO is requested to ensure that the child witness does not meet either the petitioner i.e, the father or the respondent no.5 and be kept in the child welfare home at Shahdol till she deposes before the trial Court on 25.03.2019.

The learned trial Court is requested to ensure that on 25.03.2019, that the child witness statement is recorded. It is also requested that the case in which the corpus is to testify as a child witness, be taken as first of case on the date. Counsel for the defence shall cross-examine the child witness on 25.03.2019, itself and no adjournment shall be granted.

In the event, the child cross-examination is not done on the designated day, the child shall be sent back to the child welfare home and not handed over to the petitioner. After the child is examined, it shall be kept at the child home and produced before this Court on the next date of hearing.

List this case for further orders on 27.03.2019. On that date, the SHO of Police Station-Bhalumada shall remain present before this Court. Further presence of the SDOP is dispensed with.

A typed copy of this order is give to the State for necessary action.

C.C. as per rules.