IMPORTANT POINT
The extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in exceptional cases where the ordinary remedy provided by the law is either unavailable or ineffective, and the welfare of the child is paramount in determining custody issues.

JUDGMENT :

Pushpendra Singh Bhati, J.

1. This present Habeas Corpus Writ Petition has been preferred for claiming custody of a minor son. However, learned counsel of the petitioner restricts his prayer as to maintainability of the present petition.

2. Brief facts of the case are that the petitioner and the daughter (Smt. Priya Jain) of the respondents no.4 & 7 solemnized marriage on 25.04.2016 as per Hindu customs and rituals, and out of the said wedlock, a child (son) was born on 06.12.2019. Thereafter, due to some matrimonial discord, the petitioner and his wife started living separately from each other from the year 2020, whereafter, in the year 2023, the proceedings relating to matrimonial dispute were initiated and during the course of such proceedings, the petitioner’s wife (Smt. Priya Jain) expired due to road accident.

3. Mr. Rajesh Panwar, learned Senior Counsel assisted by Mr. Ayush Gehlot appearing on behalf of the petitioner submits that the son of the petitioner is in custody of his maternal grandparents as well as maternal uncle (Mama) and the son is a minor aged 3 years and 10 months, and therefore, the petitioner, being father, is the legal and natural guardian of the said child.

3.1. Learned Senior Counsel further submits that despite all sincere efforts, the petitioner could not get custody of his minor son, and thus, he has an apprehension that his son is being illegally detained by the private respondents, and therefore, the present petition is maintainable.

3.2. Learned Senior Counsel also submits that the petitioner’s minor son cannot be detained illegally by the private respondents, and also if there is an illegal detention, then the habeas corpus is maintainable before this Hon’ble Court, as per the law settled by the Hon’ble Apex Court.

3.3. In support of such submissions, learned counsel relied upon the judgments rendered by the Hon’ble Apex Court in the cases of Rajeswari Chandrasekar Ganesh Vs. The State of Tamil Nadu & Ors. (Writ Petition (Criminal) No. 402/2021, decided on 14.07.2022); Tejaswini Gaud & Ors. Vs Shekhar Jagdish Prasad Tewari & Ors (2019) 7 SCC 42; Yashita Sahu Vs. State of Rajasthan & Ors. (Criminal Appeal No. 127/2020, decided on 20.01.2020).

Relevant portion of the judgment rendered in Rajeswari Chandrasekar Ganesh (Supra) is reproduced as hereunder:

“91. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child.”

Relevant portion of the judgment rendered in Tejaswini Gaud & Ors. (Supra) is reproduced as hereunder:

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary reme