Full Judgment
2. Heard Sri Lalit Maurya and Vinod Kumar for the petitioners and Sri Jai Narayan for the private respondents (respondent Nos. 4 to 8) and learned A.G.A. for the respondent Nos. 1 to 3 and perused the record.
3. In the present habeas corpus petition, the question of legality of the custody of petitioner No.2 Nikki Maurya, an infant aged about one year and two months is involved. The petitioner No.1 Neetu Maurya is the mother and the respondent No.4 is the father of the child. The child is presently in the custody of the father. The case of the petitioner is that the child has been kept by the respondent Nos. 4 to 8 in their custody without any lawful authority. She, being the mother of the child, is entitled to the custody of the child, therefore, the custody of the child may be handed over to the petitioner No.1 Neetu Maurya.
4. This court vide order dated 11.2.2001 required the respondent No.4 to appear in person along with corpus but today no doubt he is present in person but did not produce the child. Mr. Jai Narayan submitted that the child is ill, therefore, it was not desirable to produce the child today. He, however, showed his willingness to produce the child as and when required.
5. Both the petitioners Neetu Maurya and respondent No.4 being the parents of the corpus are, admittedly, natural guardians of the corpus. In view of the fact that the child is merely one year and two months old, it would not be proper to keep the child in the custody other than the mother. At this stage, the mother seems to be the most suitable person not only for proper care, nourishment and health of the child but also for her other welfare. There is no allegation that the mother would not give due care to the child or she has solemnised remarriage. The marriage between the petitioner No.1 and respondent No.4 still subsists. On account of some differences, the petitioner No.1 seems to have started to live with her parents. In this view of the matter, keeping the child in the custody of respondent Nos. 4 to 8 would not be proper in the interest of the welfare of the child.
6. Moreso, Mr. Jai Narayan showed his willingness to hand over the child to the mother (petitioner No.1).
7. Learned counsel for the petitioners submitted that the respondent Nos. 4 to 8 may be directed to hand over the child in the presence of the Chief Judicial Magistrate, Fatehpur so that delivery of the child may be authenticated byhim.
8. Keeping in view the facts and circumstances of the case and submissions of the learned counsel for the parties, the habeas corpus petition is allowed.
9. The respondent Nos. 4 to 8 are directed to hand over the corpus to the petitioner No.1 Neetu Maurya on 24.03.2011 in the presence of the Chief Judicial Magistrate, Fatehpur who will not only ensure safe delivery of the corpus in compliance of this order but will also certify the same and forward a report to this Court as early as possible.
10. The petitioner No.1 and respondent Nos. 4 to 8 are directed to appear before the Chief Judicial Magistrate, Fatehpur on 24.03.2011. On that date, the respondent Nos. 4 to 8 shall also produce the corpus (Nikki Maurya). In case, the respondent Nos. 4 to 8 does not appear before the Chief Judicial Magistrate, Fatehpur or they fail to produce the corpus it will be open to the Chief Judicial Magistrate, Fatehpur to ensure their presence and delivery of the child to the petitioner No.1 by issuing appropriate processes.
11. However, it is made clear that this order will be subject to the order, if any, passed by the competent court under the Guardian and Wards Act.
12.With the aforesaid observations, the habeas corpus writ petition is disposed of.