The welfare of the child is the paramount consideration in determining custody, and the writ of habeas corpus is maintainable in child custody matters where the detention of a minor child by a parent or others is illegal and without any authority of law.

ORDER :

(Vipul M. Pancholi, J.)

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner – mother of the corpus has prayed that a writ of habeas corpus be issued directing the respondent Police Authorities to produce the minor child viz. Jiyansh (corpus) i.e. son of the petitioner before this Court and handover/restore the custody of the corpus to the petitioner mother.

2. Heard learned advocate Mr. Anand Gogia for the petitioner, learned advocate Mr. Manmeetsingh P. Chhabra for respondent Nos. 4, 5 and 6 and learned APP Mr. H. K. Patel for respondent Nos. 1, 2 and 3.

3. Learned advocate for the petitioner submitted that petitioner got married with the respondent No.4 in the year 2013. Out of the said wedlock, the petitioner and respondent No.4 are having a son viz. Jiyansh. However, because of certain disputes, the petitioner has initiated proceedings under Section 125 of the Code of Criminal Procedure, 1973 and under Section 498A of the Indian Penal Code, 1860 against the respondent husband and his family members. At this stage, it is contended that on 02.10.2021, at about 8:00 to 8:15 p.m., petitioner along with her mother and minor son Jiyansh i.e. the corpus went for miscellaneous shopping to the nearby market on two wheeler. After some time, when the petitioner and her mother noticed that respondent Nos. 4 to 6 and one unknown person were following them, they immediately returned from the market. It is further submitted that when the petitioner, her mother and corpus reached near their building, respondent Nos. 4 to 6 and unknown person, by using force, snatched away the son of the petitioner, who is aged about 4 years, from the hands of the petitioner and also gave threats. The petitioner, therefore, immediately called the police by dialing ‘100’. Thereafter, the petitioner and her relatives went to Airport Police Station and informed the Police Authorities about the incident. The Police Authority on its own prepared the brief complaint (Janvajog Entry) which was refused to sign by the petitioner as the same did not contain the correct details, which were described to the Police Authorities. A request was also made to the concerned Police Authority to verify the CCTV footage of the nearby shops. At this stage, learned counsel has referred to the documents which are annexed with the petition.

4. Learned advocate for the petitioner further contended that thereafter, at about 11:25 p.m., petitioner submitted a written complaint to the Police Authority and informed about the incident. Statements of the petitioner and her relatives were also recorded. However, no steps were taken by the respondent Police Authorities and as the son of the petitioner is in illegal custody of respondent Nos. 4 to 6, the petitioner has immediately filed present petition.

5. At this stage, learned advocate Mr. Gogia for the petitioner has referred to the order dated 06.10.2021 passed by this Court and submitted that this Court issued urgent notice which was made returnable on 08.10.2021. Learned advocate has, thereafter, referred to the order dated 08.10.2021 passed by this Court and submitted that after considering the submissions canvassed on behalf of the petitioner as well as the private respondents and after considering various decisions rendered by this Court as well as the Hon’ble Supreme Court, this Court directed the respondents to handover interim custody of the corpus to the present petitioner – mother. Learned advocate has also referred to the various orders passed by this Court in the present proceedings and submitted that till today the custody of the corpus is with the petitioner. However, the respondent No.4 is permitted to take interim custody of the child from 11:00 a.m. to 8:00 p.m. on every Sunday.

6. Learned advocate Mr. Gogia, thereafter, referred to the notice dated 23.09.2021 issued by learned advocate for respondent Nos. 4 to 6 to the present petitioner, copy of which is placed on rec