The welfare of the child is the paramount consideration in cases of custody and visitation rights.

JUDGMENT

Abhay S. Oka, C.J. - Heard the learned counsel appearing for the petitioner.

2. The petitioner is the wife and the fourth respondent is the husband. The dispute concerns a girl child born on 18th August 2015. It appears that there is a matrimonial dispute between the petitioner and the fourth respondent. There are allegations made by the petitioner in this petition about the misconduct of the fourth respondent. She has described how she was forced to leave the matrimonial home and how the custody of the child was snatched by the fourth respondent.

3. The learned counsel appearing for the petitioner submitted that firstly, it must be noted that the police have not taken action on the basis of the complaints made by the petitioner. The copies of the complaints have been annexed to the petition at Annexure-C and Annexure-F. Secondly, submitted that the petitioner is entitled to custody of the child and that the fourth respondent has forcibly taken away the custody. He submitted that even during this period of pandemic, the petitioner is not able to meet the child. He would, therefore, submit that intervention of the Writ Court is required. On record, two decisions have been produced. The first decision of the Apex Court is in the case of Roxann Sharma v. Arun sharma, (2015) AIR SC 2232 . The second decision in the case of Capt. Dushyant Somal Vs. Smt.Sushma Somal and Another, (1981) 2 SCC 277 .

4. Now coming to the facts of the present case, the age of the child now is approximately five years. Even going by the averments made in the petition, from November 2018, the child is in the custody of the fourth respondent-father. The fourth respondent-father has filed statement of objections raising a contention that being a father he is the natural guardian of the child. The averments made in the petition and the statement of objections filed by the fourth respondent show that the wife and the husband are making allegations against each other which indicates that there is a serious matrimonial dispute between the petitioner and the fourth respondent. There is a rejoinder filed by the petitioner.

5. It is well settled that the issue regarding the custody and visitation rights in relation to a minor child has to be decided not on the basis of the legal rights of the parties but the paramount consideration is the welfare of the child.

6. In a given situation, the Writ Court is not powerless. But, in the facts of the case, one has to bear in mind that we are dealing with a girl child who is about 5 years old. Various factors will have to be considered while dealing with the prayer of handing over temporary custody or custody to the petitioner-mother. These are the things which can be done in best possible manner by the competent Court which is empowered to grant custody to the petitioner.

7. Coming to the decision in the case of Roxann Sharma, the case before the Apex Court arose out of the proceedings filed in the Trial Court under the Hindu Minority and Guardianship Act, 1956. In the case of Cap.Dushyant Somal, in Paragraph No.7, the Apex Court has observed that normally when there is an alternative remedy such as remedy under the Guardians and Wards Act and the Code of Criminal Procedure, 1973, the prerogative writ cannot be issued. The Apex Court further observed that where what is complained of is an impudent disregard of the order of the Court, prerogative writ can be issued.

8. There is one more decision of the Apex Court which is placed on record. That decision is in the case of Syed Saleemuddin Vs. Dr.Rukshana and Others, (2001) AIR SC 2172 . In the appeal before the Apex Court, the appellant was the husband and the first respondent was the wife. The first respondent had filed a writ of habeas corpus in relation to two children aged six and five years respectively. In Paragraph No.11 of the decision, the Apex Court has reiterated the well settled principles which read thus;

"P11. From the principles laid down in the aforem