JUDGMENT :

MAUNA M. BHATT, J.

1. Rule returnable forthwith, Learned APP waives service of rule on behalf of Respondent-State and Learned Advocate Mr. K.I. Kazi waives service of rule on behalf of private Respondent Nos. 4 and 6.

2. This petition under Article 226 of Constitution of India is filed seeking writ of habeas Corpus or writ in the nature of habeas Corpus for production of Corpus-Pranav Rajesh Acharya, aged 5 years (Date of Birth: 14.06.2016).

3. Factual Aspect:

3.1. Petitioner herein is the parental grandfather of the Corpus, Respondent No. 3 is the maternal uncle, Respondent No. 4 is the maternal aunt, Respondent No. 5 is the Corpus and Respondent No. 6 is the maternal grandfather.

3.2 Mother of Corpus, Rakhi Suryavanshi and father of Corpus, Rajesh Acharya got married in the year 2011. We have been given to understand that it was a love marriage. After marriage, both were working and residing in Ahmedabad. The certificate of marriage dated 28.01.2011 is on record. Out of the wedlock, Corpus-Pranav Acharya was born on 14.06.2016. The Corpus and his parents were staying happily. Unfortunately, during the 2nd wave of COVID-19 in Gujarat, both father and mother of the Corpus contacted COVID-19 infection and succumbed to the same. Father of the Corpus namely, Rajesh Archarya expired on 13.05.2021 and mother of the Corpus namely, Rakhi Archarya expired on 12.06.2021. While the parents of the Corpus were infected with COVID-19, the custody of minor Corpus was with Respondent No. 4, who is the maternal aunt.

3.3 It is alleged in the petition that ever since then, Respondent No. 4 is not allowing the Petitioner to enter the house of his son and daughter in law and to take belongings of Corpus as also his deceased son and daughter in law.

3.4 On the above factual background, the present petition is filed by the Petitioner (paternal grandfather) seeking custody of minor Corpus Pranav Archarya. Upon notice being issued, the Respondents Nos. 4 and 6 appeared through their advocates and filed their respective affidavits.

3.5 We have heard Learned Advocate Mr. Kuldeep Vaidya for the Petitioner, Learned Advocate Mr. Zubin Bharda with Learned Advocate Mr. K.I. Kazi for the Respondent Nos. 4 and 6 and Learned APP Ms. Jirga Jhaveri for Respondent-State.

4. Submissions on behalf of the Petitioner:

4.1 It is the case of the Petitioner that he is a retired Central Government employee and stays in Ahmedabad with his wife at the address given in the petition. It is his case that though his son and daughter-in-law were staying separately in Ahmedabad, since they both were working, the Corpus was looked after by the Petitioner and his wife. This is the reason why the Corpus is very attached to the Petitioner and his wife. It is contended that as he and his wife had also contacted with COVID-19 infection at the same time as contacted by the parents of the Corpus, and both the Petitioner and wife being aged people, they had kept themselves under isolation and that is the reason they could not meet their son and daughter-inlaw during their treatment for combating COVID-19. It is further contended that the Corpus is accustomed to stay in Ahmedabad and more comfortable with grandparents and, therefore, Dahod where Corpus’s maternal aunt (Respondent No. 4) resides would not be a suitable place for him. It is strenuously contended on behalf of the Petitioner that even the Corpus is not willing and ready to reside in Dahod. In relation to the welfare of child, Learned Advocate submitted that Petitioner and his wife are in good health, they have their own house in Ghodasar and the Petitioner gets pension for their livelihood. In relation to studies of the Corpus, the Petitioner has assured that the Corpus shall be imparted with the best possible education. It is further submitted that the younger son of the Petitioner, who stays in Coimbatore with wife and children, is well settled and has his own restaurant business. The Petitioner has submitted that the youn