The court affirmed that a petition for Habeas Corpus is not maintainable where custody proceedings are ongoing under the Guardians and Wards Act.

ORDER :

1. This Habeas Corpus Petition has been filed under Article 32 of the Constitution of India by the petitioner (father) for the custody of his two minor children.

2. The brief facts of the case are that the petitioner had married the respondent No. 6 and they have a son aged about 15 years and a daughter aged about 10 years. The petitioner is a citizen of Spain. There being some disputes between the petitioner (husband) and respondent No. 6/wife, the respondent No. 6/wife left the petitioner along with the two minor children. The petitioner thereafter filed a case under Section 12 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”) for the custody of two minor children, before the 10th Additional District Judge, Alipore, Kolkata, which is numbered as Case No. 88 of 2017. The said case for custody is still pending before the said Court. Further a case under the Protection of Women from Domestic Violence Act, 2005 has also been filed by respondent No. 6/wife against the petitioner, which is also pending. In the said case, some maintenance amount was granted in favour of respondent No. 6/wife, which was challenged before the High Court and the same has been reduced. The same is not an issue in this petition.

3. In the background of the aforesaid facts and circumstances, the petitioner has filed this writ petition with the following prayers:

“(i) Issue an appropriate writ/order/direction in the nature of Habeas Corpus to issue directing and commanding the Respondent Nos. 2, 3, 4 and 5 to produce Siddhartha Aupa Zalba Mahapatra and Ikantika Margarita Zalba Mahapatra before this Hon’ble Court ensuring protection of their rights and their best interest from the custody of the respondent no. 6.

(ii) Issue an appropriate writ/order/direction in the nature of Mandamus directing the Respondents No. 2, 3, 4 and 5 to hand over the custody of the said Siddhartha Aupa Zalba Mahapatra and Ikantika Margarita Zalba Mahapatra subject to the outcome of Act VIII Case No. 88 of 2017 pending before the Learned 10th Additional District Judge, Alipore for ensuring proper protection of their rights by shifting the children from Kolkata, India to Spain, the safest option available to the children.

(iii) Issue an appropriate writ/order/direction in the nature of Certiorari directing the respondents to produce the records of the case in connection with Act VIII Case No. 88 of 2017 presently pending before the Learned 10th Additional District Judge, Alipore before this Hon’ble Court so that conscionable justice may be administered after scrutinizing the same.

(iv) Interim order directing the Respondents concerned and to render police assistance for protecting the life and property of the children of the petitioner and the respondent no. 6, namely, Siddhartha Aupa Zalba Mahapatra and Ikantika Margarita Zalba Mahapatra.

(v) Interim order directing the children to be taken from Kolkata, India to Spain and live under the care and protection of their paternal family including the petitioner and be housed at their paternal family home in Spain.”

4. We have heard the petitioner, who has appeared in-person, as well as Mr. Sidharth Luthra, learned senior counsel appearing on behalf of respondents no. 1 to 5 along with Mr. Chanchal Kumar Ganguli and Mr. Anuj Prakash, learned counsel for respondent no. 6/wife and perused the record. We have also heard Mr. P.S. Narasimha, learned senior counsel who was appointed as Amicus Curiae to assist the court.

5. The fact that the petition for custody of the children under Section 12 of the Act is pending, has not been disputed. The pende