The welfare of the child is the supreme consideration in custody disputes, overriding parental legal rights.

JUDGMENT

Birendra Kumar, J. - The petitioner has sought for issuance of writ of habeas corpus for production of his two children, who are in wrongful detention of respondent No.5, the wife of the petitioner, since 05.11.2022.

2. The petitioner stated that he married with respondent No.5 on 07.06.2012. A son, Mr. Ibrahim Khan, was born on 04.08.2013 and a daughter, Khursheed Khan, was born on 26.04.2015 out of the wedlock. Since February 2020, respondent No.5 abandoned the petitioner as well as her children and the children were in the custody of the petitioner before 05.11.2022. The respondent No.5 asked the petitioner that the children be sent to her for a few hours and thereafter she would also return to stay with the petitioner along with the children. The petitioner acceded to the request of respondent No.5 but thereafter respondent No.5 did not sent back the children.

3. In the reply, respondent No.5 stated that wrong fact has been asserted by the petitioner in the writ petition rather respondent No.5 was bitterly assaulted by the petitioner in her matrimonial house and was thrown out from the house. The respondent No.5 is always ready and willing to live with the petitioner along with her children.

4. On direction of this Court, the corpus were produced before the Court along with respondent No.5. On 21.12.2022, the petitioner expressed before this Court his willingness to bring respondent No.5 and children to live together, respondent No.5 had also agreed for restoration of conjugal relation. This Court directed the petitioner to file an affidavit that he will take proper care of respondent No.5 and her children. In the affidavit, the petitioner stated that he is not ready for restoration of conjugal life with the wife rather he wants only custody of the children.

5. On 21.12.2022 and again on 16.01.2023, we interacted with the two children. They expressed that they want to live with their mother. Their mother is already a teacher and they are studying in Subodh Public School at Jaipur, a School having academic reputation. They further informed that the petitioner is having business of emeralds. The children stated that they would go with the father only if their mother goes with him.

6. We are conscious that the issue of illegal detention of minor children by either of the parents can be looked into while exercising jurisdiction of issuance of writ of habeas corpus. We are also conscious that a roving inquiry to ascertain the truth of assertion or denial, of the parties cannot be made in exercise of this jurisdiction. (Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, reported in (2019) 7 Supreme Court Cases 42).

7. Learned counsel for the petitioner submits that the personal law of the parties would not come in the way of deciding illegal detention. The paramount consideration would be the welfare of the child.

Learned counsel has placed reliance on the judgment of The Hon'ble Supreme Court in the case of Tejaswini Gaud (supra). Paragraph Nos. 26 and 27 of the judgment are being reproduced below:-

'26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.

27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu, it was held as under:-

49. In Goverdhan Lal v. Gajendra Kumar, the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a prefer