( 1 ) THAT a petition for a writ of habeas corpus is maintainable even in cases where the parents are fighting for the custody of their off-spring is no longer res Integra. In Gohar Begum v. Suggi @ Nazma Begum and ors. , AIR 1960 SC 93, the Apex Court traced the history of habeas corpus as prevalent in England and held that the principles applicable to such writs in England were also applicable to directions issued under Section 491 of the Cr. P. C: in this country. The court further observed that the power under Section 491 of the Cr. P. C. had been exercised in this country even in relation to the custody of the children, and approved the ratio of the decisions in Rama Iyer v. Nataraja Iyer, AIR 1948 Madras 294, zara Bibi v. Abdul Razzak, 12 Bombay Law Reporter 891 and Subbaswami Goundan v. Kamakshi Animal, AIR 1929 Madras 834 where the courts had exercised such power. More importantly the court held that the remedy available under Section 491 of the Cr. P. C. would become infructuous if it was not available in cases involving custody of infants.

( 2 ) THE above decision was approved by a Constitution Bench of the supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling and ors. , 1973 2 SCC 674. The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court, is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant s freedom and his release when the detention is found to be unlawful.

( 3 ) THE approach to be adopted by the courts while dealing with a petition for a writ of habeas corpus in relation to the custody of minor child has also been authoritatively indicated by the Supreme Court in a series of decisions delivered on the subject. In Sayed Saleemuddin v. Dr. Rukhsana and Ors. , (2001) 5 SCC 247, their lordships held that in a petition seeking a writ of habeas corpus for the custody of a minor child, the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child left in the care and custody of somebody else. The court reiterated that in the matter of custody of a child, the welfare of the child is the paramount consideration for the court.

( 4 ) TO the same effect is the decision of the Supreme Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. , (1987) 1 SCC 42 where the court held that whenever a question pertaining to the custody of a minor child arises for consideration, the matter is to be decided not by reference to the legal rights of the parties but on the sole and paramount criterion of what would best serve the interest and welfare of the minor. Even in Dhanwanti Joshi v. Mahadev Unde, (1998) 1 SCC 112, the court took a similar view. It referred to Hague Convention of 1980 on Civil aspects of International Child Abduction according to which if a child is wrongfully removed from one State to the other, the courts in the country to which he is so removed are-required to send the child back to the country from where he was removed unless it is found that the child would be exposed to physical or psychological harm. India not being a signatory to that Convention, questions regarding the custody of the child will have to be considered on the merits of each case bearing the welfare of the child as of paramount importance