Vijay Lakshmi Sahu v. The State of NCT of Delhi & Anr.

1. Present petition has been filed by the petitioner seeking following prayer:- “Issue a Writ of Habeas Corpus, directing the Respondent to locate the whereabouts of the minor child/ Master “A” and produce the minor child/ Master “A”, S/o Sh. Deepak Sahu and Ms. Vijay Lakshmi (Petitioner) and consequently custody be given to the Petitioner.” W.P.(CRL) 982/2024 2

2. Issue notice. Learned Addl. P.P. for the State accepts notice on behalf of the State.

3. Husband of the petitioner (respondent No.2) is present in Court with their such younger child. It is admitted by the respondent No.2 that for the last ten days, their said younger child is with him. He also submits that he has already filed a divorce petition seeking divorce and has also sought custody of both the children in Chhindwara District, Madhya Pradesh. It is stated that respondent No.2 was earlier in service and, therefore, was in no position to take care of his children. He has now left such job and thereafter has taken custody of one such child. Such usurpation of custody is, apparently, without any authorization or order of the Court.

4. The younger child of the petitioner recognizes his mother very well who showered him with love and affection to the same extent as his father. The child is also looking very comfortable in the company of his elder brother.

5. Since the younger child was earlier, admittedly, in custody of his mother (petitioner herein) and there is matrimonial acrimony between the parties and a petition has already been filed by the respondent seeking custody of both the children which is pending before the Family Court, therefore, the custody of the younger child should continue to be with his mother (petitioner herein) till the time any order to the contrary is passed by a competent Court.

6. Though, any father of minor is natural guardian but fact remains that he can’t take custody without the authority of law. According to W.P.(CRL) 982/2024 3 petitioner, she had filed a Transfer Petition in Hon’ble Supreme Court and even in his counter affidavit, her husband had admitted that the custody of children was with their mother only and thus the manner in which he has taken away custody of the child is illegal and without any legal sanction.

7. In view of the above, since the custody, for the time being, has been restored to the petitioner, no further orders are required to be passed in the present petition. Parties are at liberty to take steps as per law before the appropriate Court seeking custody/visitation of their children. Such Court shall not get prejudiced by the observations made herein above and shall decide such issue in accordance with law.

8. Petition is, accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE (MANOJ JAIN)

JUDGE APRIL 1, 2024