Abdul Sahil And ANR. v. The Director General Of Police And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA(H)/1/2022 Abdul Sahil and Another ... Petitioners Vs.
The Director General of Police and Others ... Respondents Mrs. Anjili Nag ... for the petitioners Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents Mr. Arul Prasanth ... for the private respondents June 30, 2022 [SR] Item No.2 The petitioners seek a Writ in the nature of Habeas Corpus directing the respondent authorities to produce the minor child and for consequential reliefs.
Admittedly, the petitioners are the biological parents of the child. The child was born on 8 October 2017. Initially, the petitioners and the private respondents were neighbours and had a cordial relationship. It is alleged on behalf of the petitioners that due to such friendly relationship, a closeness developed by and between the petitioners and the private respondents. The private respondents are issueless.
It is alleged that on 24 August, 2018, all of a sudden, the private respondents entered the residence of the petitioners and forcibly took the child from the custody of the petitioners. On the same day, a complaint was lodged with the police authorities. Thereafter, in view of the inaction of the police authorities, a writ application being WP No.225 of 2018 was also filed before this Court. By an order dated 7 August, 2018, an interim arrangement was made by and between the parties granting liberty to the parties to place their grievance before the Appropriate Forum.
In this petition, the petitioners complain of inaction of the police authorities in taking steps to trace the minor child, notwithstanding the fact that the petitioners have been declared to be natural guardians of the child and the Deed of Adoption relied upon by the private respondents has been held to be invalid.
Diverse proceedings have also been initiated by the parties under the Guardian and Wards Act 1890 before the Family Court. Admittedly, there is an order dated 16
February, 2021 whereby, the Family Court at Port Blair, District, South Andaman has held that the child was removed from the custody and possession of the biological parents without any valid or lawful Deed of Adoption and further directed the private respondents to return the child to the petitioners. Thereafter, by an order dated 18 November, 2021, the Family Court has refused to exercise its jurisdiction in executing the order dated 16 February, 2021.
On behalf of the private respondents, it is submitted that the child had been given by way of adoption at an early age (when the child was only 13 days old) and has since been with the private respondents. It is also submitted that the private respondents are taking steps to assail the order dated 16 February, 2021 passed by the Family Court. Pursuant to orders passed in this petition, the police authorities had produced the child before this Court on 29 June, 2022. It is pertinent to mention that the child had been taken out of the Island by the private respondents and was ultimately traced to be at Calcutta.
We have heard the petitioners, the respondents, the police authorities as well as a member of Child Welfare Committee (CWC).
At this stage, the only question is one of interim custody of the child. We make it clear that the final question of custody of child would be decided by the Competent Court. Our findings in this order are not binding on the Competent Authority and the same are only as an ad hoc measure for the purpose of adjudication of this proceeding. On behalf of the petitioners, reliance has been placed on the decision of Tejaswini Gaud and Ors vs. Shekhar Jagdish Prasad Tewari and Others reported in (2015) 10 SCC 1.
The only consideration which weighs with this Court in directing the interim custody of the child, is not only the legal right of the parents but one of welfare of the child. This, in our view, is the supreme consideration. Such a question cannot, in our view, be decided on the basis of the documents or evidence or precedents without reference to a human element in such matters. In our view, the
convenience or inconvenience of the petitioners and the private respondents recedes in the background at this stage of the proceeding. It is well settled that the writ of habeas corpus also extends its influence to restore custody of minor to his guardian when wrongfully deprived of. However, keeping in view the peculiar facts of this case, we are of the view that in the interests of the child due weight should also be given to the child's ordinary comfort, health, overall development and favourable surroundings. By an order dated June 29, 2022, this Court had directed, whilst the hearing of this matter that during the interregnum the parties would remain in joint residence to be provided by the petitioners.
Accordingly, we dispose of this writ petition by confirming the subsisting order dated June 29, 2022. We direct that the parties shall jointly reside at the residence of the petitioners. We also make it clear that both sets of parents i.e. the petitioners and the private respondents are given full access to the child. We expect that till the issue of custody is finally decided by the
Competent Court both the petitioners and the private respondents shall ensure a peaceful, congenial and conducive environment for the welfare of the child without any untoward incident of any kind whatsoever and mutually share all the responsibilities for the well being of the child.
This arrangement shall continue until further orders by a Competent Court. The member of the CWC shall regularly be informed of the well being of the child and shall take appropriate steps in case of any untoward incident. The Police Authorities are also directed to ensure implementation of this order.
With the aforesaid directions, WPA(H)/1/2022 stands disposed of.
( Ravi Krishan Kapur, J. ) ( Tirthankar Ghosh, J. )