Jalaluddin Sekh vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

The grievance of the petitioner is that the petitioner, despite being the father of a minor daughter aged about ten years, is not being handed over

custody of the said child, despite several complaints having been lodged before the police authorities.

Learned counsel for the petitioner submits that the petitioner is the natural guardian of the child and, in the absence of anything to show that the

petitioner is unfit to take care of the child, there is nothing to prevent the petitioner from taking custody of the child, which is being restrained by the

private respondents. Despite complaints, it is argued, the police authorities are not taking appropriate steps on such complaints of the petitioner.

Learned counsel cites a judgment dated May 6, 2019 passed by the Supreme Court in Criminal Appeal No.838 of 2019 (Tejaswini Gaud and others vs.

Shekhar Jagdish Prasad Tewari and others). On the basis of the said judgment, it is argued that in that case as well, the custody of the child was

directed to be handed over to the father of the child on a habeas corpus petition having been filed by the father.

However, upon hearing both sides, it appears prima facie that the present dispute is factually distinguishable from the facts of the cited judgment

inasmuch as the age of the child in the said case was one and half years whereas it is ten years in case of the daughter of the petitioner, who has

attained the age of having intelligent preference in the matter of her custody. Moreover, the powers of the Supreme Court while dealing with a matter

arising out of a writ of habeas corpus cannot be equated with the power of this Court to issue a rule of mandamus against the police, directing them to

do something which the police is not entitled under the law to do. It is evident from the previous judgments of the Supreme Court, which were

considered by the Supreme Court in the cited judgment, that custody of a child depends on the paramount consideration of welfare of the child.

In the present case, the petitioner is asking the police, as is evident from the petitioner’s representation annexed as annexure P/5 at page 29 of the

writ petition, to decide upon a civil dispute as regards the custody of the child-in-question. It would not be prudent for the police to embark upon such

enquiry on taking evidence, which is necessary to decide the said dispute, which is de hors the jurisdiction of the police as well as this Court under

Article 226 of the Constitution of India. Only a competent civil court would have the power to grant custody, if prayed for by the petitioner, upon

taking evidence and hearing both sides, including the private respondents. Hence, at the present juncture, this Court does not find that the police

authorities were at fault in not taking any criminal action on the basis of the complaint filed by the petitioner against the private respondents, which

requires adjudication of a civil dispute.

Hence, W.P. No.2945(W) of 2020 is disposed of by granting the petitioner liberty to approach the civil court for remedying his grievance as regards

custody of his daughter.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.