Jayanta Kumar Biswas, J.

The petitioners in this WP under Article 226 of the Constitution of India dated April 26, 2013 are seeking the following principal relief:-

“a) Pass appropriate writ, order and/or directions particularly in the nature of Habeas Corpus directing the Respondents 2 & 3 to get the minor Khushi Sharma and Aditya Sharma children of Late Sandeep Sharma released, who have been remained under illegal custody of Respondents Nos. 4 to 11, and hand them over to the petitioners.” The second and third respondents referred to in prayer (a) of the W P are the following:-

“2. Station House Officer, Police Station: Chandni Chowk, Delhi-110006.

3. Incharge of Police, Police Station: Regent Park, P.O.: Naktalla, Kolkata 700 047.”

The petitioners had a son called Sandip. The fourth respondent Sunita was married to Sandip. Out of the wedlock a female child and a male child were born. Sandip died on October 6, 2010. In September 2011 Sunita left the matrimonial home with her children. Then she married the fifth respondent Gangeswar on June 21, 2012.

The sixth respondent Sharda is Gangaswar’s sister. The seventh respondent Ramesh is Sharda’s husband. The eighth respondent Kiran is Sunita’s sister. The ninth respondent Chandra Sekhar is Kiran’s husband. The tenth respondent Ramgopal is Sunita’s father. The eleventh respondent Ravi is Sunita’s brother.

The case of the petitioners is this. Sunita has given custody of her daughter to the sixth respondent. Her son is in the custody of the eighth and ninth respondents. Since Sunita’s daughter and son are in the illegal custody of these respondents, a habeas corpus should be issued directing production of the children so that considering the question of their welfare that is of paramount interest, they (the petitioners) can be given custody of the children.

Sunita has filed an affidavit. Her case is this. Her daughter is in her custody. She has given her son in adoption to the eighth and ninth respondents. Hence there is no reason to say that the children are in illegal custody of anyone. It is wrong to say that welfare of the children is in jeopardy.

Mr Jha appearing for the petitioners and relying on the decisions in Gohar Begum v. Suggi & Ors., AIR 1960 SC 93, Veena Kapoor v. Varinder Kumar Kapoor, AIR 1982 SC 792, Rajiv Bhatia v. Government of NCT of Delhi & Ors., (1999) 8 SCC 525 and Nil Ratan Kundu & Anr. v. Abhijit Kundu, (2008) 9 SCC 413, has submitted that the petitioners coming up with a specific case that the present custody of the children is prejudicial to the welfare of the children are entitled to seek a habeas corpus and custody of the children.

In Gohar Begum, Gohar alleged that Kaniz Begum, Gohar’s mother’s sister and a respondent in the appeal before the Supreme Court,was illegally detaining Gohar’s infant female child. The Supreme Court held that Kaniz having no legal right to the custody of the child and illegally detaining the child, was liable to give its custody to Gohar, entitled in law to the custody of the child. In Veena Kapoor, Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was in illegal custody of the one and a half years old child. The Supreme Court directed the District Judge concerned to take down evidence, if adduced by the parties, and send a report before the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

In Rajiv Bhatia the habeas corpus petition was filed by one Priyanka, the mother of the girl, alleging that her daughter was in illegal custody of Rajiv, her husband’s elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court held that the High Court “was not entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.”

Nil Ra