ORDER :

Prakash Gupta, J.

1. This habeas corpus petition has been filed by the petitioner (wife) seeking custody of her minor son Dhawaj Sharma alleging him to be in the illegal custody of respondent No. 5 (husband).

2. Vide order dated 18.1.2021 passed by this Court, both the parties were directed to remain present before this Court along with their minor son Dhawaj Sharma. Pursuant thereto, both the parties appeared before this Court along with the minor son Dhawaj Sharma. Earnest endeavor was made to secure a reconciliation through interactions with the parents and the child. However, all efforts of reconciliation having failed, the petition is being disposed of on merits.

3. Learned counsel for the petitioner submits that on 10.12.2013, the marriage of petitioner and respondent No. 5 was solemnized according to Hindu rites and customs. Out of their wedlock, a son Dhawaj Sharma born on 9.1.2016 and on 20.7.2020 when the habeas corpus petition was filed, Dhawaj Sharma was about 4 ½ years old. He further submits that thereafter some matrimonial disputes arose between the petitioner and respondent No. 5. In December, 2018, the petitioner came to Bharatpur upon her uncle's death, but thereafter she was not allowed to enter her matrimonial house. In this way, the petitioner along with her minor son were deserted by the respondent No. 5. On 10.7.2020 when the petitioner was sitting at her parental house with her minor son Dhawaj Sharma, a black coloured car came outside the gate, Respondent No. 5 got out of the aforementioned vehicle, stormed inside the house and took the child away from the legal custody of the petitioner. She immediately informed the police in this regard, but the respondent No. 5 could not be caught. Further, a complaint was also submitted by the petitioner in Police Station, Udhyog Nagar, Bharatpur. He further submits that minor son of the petitioner has been in the illegal custody of respondent No. 5. Custody of minor son Dhawaj Sharma could have been taken only by due process of law. He has drawn the attention of this Court towards the provisions of the Guardians and Wards Act, 1890 and submits that mother being a natural guardian, custody of minor child aged about 5 years, shall ordinarily be with the mother in view of the provisions of the Act.

4. On the other hand, learned counsel for the respondent No. 5 submits that the child has completed 5 years of age. As per the provisions of Guardians and Wards Act, father is the first natural guardian. He further submits that the petitioner went to her parental house at Bharatpur in December, 2018 upon her uncle's death, but on 15.12.2018 she refused to return from Bharatpur.

5. He further submits that it is wrong to say that the minor son was in illegal custody of the respondent No. 5. In-fact, the petitioner handed over the custody of minor son to him on her own accord. He has relied upon the judgment passed by the Hon'ble Apex Court in the case of Prateek Gupta v. Shilpi Gupta reported in (2018) 2 SCC 309 and contended that custody of biological father can neither said to be illegal nor unlawful. He has further relied upon the judgment of the Hon'ble Apex Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor reported in (1981) 3 SCC 92, and contended that this habeas corpus petition is not maintainable and liable to be dismissed. He also places reliance on the judgment of the Hon'ble Apex Court in the case of Chandrakala v. Vipin Menon reported in (1993) 2 SCC 6 and contended that father being the natural guardian cannot be accused of kidnapping the child.

6. He further submits that from 2016 to 2018, the child was ordinarily residing in Ghaziabad. He has already filed a petition for custody of the child under Guardians and Wards Act, in which notices have already been issued by the Court of Chief Judge of Family Court, Ghaziabad and therefore, in terms of Section 14 of the Guardians and Wards Act, 1890, this Court has no jurisdiction to entertain the p