1. Heard Mr. Mirityunjay Kumar, learned counsel for the petitioner, Mr. Ajay Kumar Sinha, learned senior counsel for the respondent no.7 and Ms.
Mallika Majumdar, learned counsel for the respondent no.5. We have also heard Mr. Bishwa Bibhuti Kumar Singh, learned counsel for the State.
2. In the instant habeas corpus writ application, the petitioner has prayed for directing the respondent-authorities to release the minor son of the
petitioner from illegal detention of the private respondents.
3. The private respondent nos. 5, 6 and 7 are father-in-law, brother-in-law and sister-in-law of the petitioner respectively.
4. The contention of the petitioner is that she lost her husband on 27.04.2021. She is blessed with a son namely, Aditya Kumar aged about ten years.
The child is in the custody of the in-laws’ of the petitioner. The further contention of the petitioner is that prior to the death of her husband, she
was thrown away from her marital house by the in-laws on 28.12.2020. The private-respondent nos. 5 and 6and 7 have illegally retained the custody
of her minor child.
5. Mr. Mritunjay Kumar, learned counsel for the petitioner submitted that in-law of the petitioner threatened her not to dare come back otherwise she
would face uncalled repercussion after she was thrown out of her matrimonial home. He contended that the petitioner is being denied her right to have
the custody of her child who has illegally been detained by the private respondents.
6. A counter affidavit has been filed on behalf of the respondent no.7 wherein it has been stated that the relationship of the petitioner with her husband
was estranged and because of differences, she was residing at her naihar and never sought custody of the child during the lifetime of her husband and
only after the death of her husband on 28.04.2021, she is seeking custody of the child, who is being brought up and looked after in the joint family of
his father since birth
7. It has further been stated in the counter affidavit that on 10.06.2021, the petitioner along with some unknown persons came to the residence of
respondent no.7. They threatened to take away the child from the custody of respondent no.7 and her husband. The entire incident was reported to
the police by filing a complaint on 09.06.2021 and again on 11.06.2021. Subsequently, the respondent no.7 came to know that the Child Welfare
Committee had passed an order on 01.06.2021 to rescue Master Aditya Kumar from the custody of respondent no.7. Thereafter, the respondent no.7
filed a statuary appeal against the order of the Child Welfare Committee (Respondent No.4) before the Collector, Darbhanga in Misc. Appeal No.168
of 2021, which is pending for adjudication.
8. In paragraph no.13 of the counter affidavit filed on behalf of respondent no.7, it has been stated that a petition under Section 7 of the Guardians and
Wards Act was filed in the court of District Judge, Darbhanga being Guardian Case No.4 of 2021 to declare the respondent no.7 as guardian of the
person and property of Aditya Kumar in the interest and welfare of the Child in which the petitioner has appeared and filed her objection on
18.02.2022.
9. In paragraph no.14 of the counter affidavit, it has been stated that apprehending any forceful dispossession of the child Aditya Kumar, the
respondent no.7 filed a writ petition vide W.P.A. No.19706 of 2022 before the Kolkata High Court and vide order dated 11.01.2022 the High Court
has been pleased to dispose of the writ petition directing that the custody of the child will not be disturbed for the time being and shall abide by any
order that may be passed by competent court, Darbhanga in Guardian Case No.4 of 2021 vide order dated 24.01.2022.
10. The contentions made in the counter affidavit filed on behalf of respondent no.7 have not been controverted by the petitioner by way of filing any
rejoinder.
11. Mr. Ajay Kumar Sinha, learned senior counsel for the respondent no.7 contended that the claim of a natural guardian by virtue of Section 6 of the
Hindu Minority and Guardianship Act cannot supersede consideration as to what is conducive to the welfare of the minor. He contended that the
welfare of the minor child is in the interest of his grand-mother, who is personally looking after the welfare of the child.
12. Ms. Mallika Majumdar, learned counsel appearing for respondent no.5 has also supported the contentions advanced in the counter affidavit filed on
behalf of respondent no.7. She has adopted the submissions made on behalf of respondent no.7.
13. In view of the order passed by the Kolkata High Court in W.P.A. No.19706 of 2022, as contained in Annexure-R/2 filed on behalf of respondent
no.7, it cannot be held to be a case of illegal detention of a minor child. The High Court has directed the parties not to disturb the custody of the child
for the time being and abide by any order that may be passed in Guardianship and Wards Act Case No. 4 of 2021.
14. Under the circumstance, no direction can be issued to the respondent authorities to release the minor son of the petitioner and hand over his
custody to the petitioner after being produced before the court.
15. Moreover, the petitioner has an equally efficacious statutory remedy available under the Guardianship and Wards Act for the redressal of her
grievance. The pleadings made on behalf of the parties would make it clear that an application under the Guardianship and Wards Act has already
been filed before the competent court and is pending adjudication.
16. In that view of the matter, we are not inclined to entertain the present application. It is disposed of accordingly, with liberty to the petitioner to
agitate her claim before the competent court at Darbhanga under the Guardianship and Wards Act.
