Question: My daughter has been living in Nari Niketan. She left our house and travelled to Agra by train. The RPF police Agra kept her in custody when she was wandering on the platform. Now the Railway Magistrate has sent her to Nari Niketan. How to take custody of my daughter from Nari Niketan? She is minor and of sound mind. Is there any procedure to bring her back home? The RPF has informed me that my daughter is living in the Nari Niketan Agra.
Question from: Madhya Pradesh
In this situation you should move an application to the Railway Magistrate and demand custody of your daughter from Nari Niketan. Currently, Nari Niketan is a legal custodian of your child because of the order of the Magistrate. Hence, you cannot move a habeas corpus writ petition before the High Court.
Taking custody of daughter from Nari Niketan
The matter is under the territorial jurisdiction of Railway Magistrate, Agra. Therefore, you should move an application in the court of Railway Magistrate, Agra. You should produce the summon and submit her birth certificate or any other document to prove that she is your daughter.
If you have lodged an FIR under Section 363 of the Indian Penal Code, for missing your child then you must produce its copy to the Magistrate. However, in absence of FIR the court may grant custody of your daughter.
In absence of evidentiary proof that she is your daughter the Court will not pass an order to transfer custody of the child from Nari Niketan.
I think there is no dispute regarding custody. She is innocent, not connected with any crime, RPF personnel found her wandering on the platform, therefore, took her in custody. The facts of your case suggest that in the interest of justice her custody should be given to her parents.
A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.R.V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71
If the Railway Magistrate refuses your application and retains her custody in the Nari Niketan, then you can move a writ petition to the High Court. In this condition, you have to file a habeas corpus writ. Such an order of Magistrate will render her custody illegal. Then you can approach the High Court for taking custody of your daughter from the Nari Neketan.