Judgment

CHINNAPPA REDDY, J.:- The appellant-petitioner, in the Criminal Appeal and Special Leave Petition, Capt. Dushyant Somal married Sushma Somal on May 10, 1973.1 A daughter Sweta born on May 16, 1974 and a son Sandeep born on April 1, 1975 are the children of the marriage. There Was estrangement between husband and wife and they appear to have been living separately since 1976. The children were living with the mother. On an allegation that Sandeep was removed from her custody by her husband in Sep., 1977, the wife moved an application under the Guardians and Wards Act, seeking custody of her minor son Sandeep. She obtained an ex parte order and pursuant to the order obtained by her, with the help of the Police, she recovered custody of her son Sandeep. According to the wife on Oct. 27, 1980, at about 7 a. m. when Sandeep escorted by his grand-mother Shanti Devi was waiting at the bus stop, Capt. Dushyant Somal accompanied by three or four other persons came in a car and forcibly took away the child. At that time Sushma Somal was helping her daughter to board a bus to go to School. After Sweta boarded the bus she came towards the place where her son was to board the bus. She found her mother shouting for help. On enquiry she was told about the kidnapping. She immediately rang up the Police Control Room and gave a report. The Police registered a case under Section 363, Indian Penal Code against her husband. Having searched in vain at various places for her son she finally filed an application under Art. 226 of the Constitution in the Delhi High Court for the issue of a Writ of Habeas Corpus directing her husband to produce her son. In answer to the Rule Nisi issued by the Court the appellant-petitioner filed a counter-affidavit denying that he had ever kidnapped the child. According to him the entire case had been fabricated to forestall any application by him under the Guardians and Wards Act seeking the custody of his son on the ground that he had completed five years and therefore, as father, he was entitled to the custody of the son. Various Preliminary objections were raised regarding the maintainability of the petition. The preliminary objections were overruled. As the appellant had denied the removal of the child, the High Court decided to examine witnesses. On the side of the wife, she examined herself and her mother. The husband did not examine himself as a witness nor did he examine anyone else on his side. He did not also choose to cross-examine his wife and mother-in-law. The High Court accepted the evidence of the wife and her mother and held that Sandeep had been unauthorisedly taken away from the lawful custody of his mother by his father and that he was being kept under illegal detention by the father. A writ was issued to the appellant directing him to produce the child before the Court on Dec. 17, 1980, so that the custody of the child could be entrusted to the mother. Despite the direction of the Court the appellant did not produce the child. The High Court came to the conclusion that the appellant was clearly guilty of contempt of Court and accordingly directed him to be taken into custody and detained in a Civil Prison until he produced the child in the Court. Criminal Appeal No. 12 of 1981 has been filed against the order of the Delhi High Court committing the appellant to prison for contempt of Court. Special Leave Petition No. 1 of 1981 is directed against the order of the High Court in the application under Article 226 of the Constitution.

2. Shri Yogeshwar Prasad, learned counsel for the appellant-petitioner argued that the appellant ought not have been committed to prison for alleged contempt of Court, when the direction of the Court that he should produce the child was impossible of obedience as the child was not in his custody. He submitted that having regard to the pendency of the prosecution under Section 363 of the Indian Penal Code, the High Court should not have issued a Writ of Habeas Corp