Writ of habeas corpus can restore custody of a minor from illegal detention, emphasizing welfare of the child over technical legal rights. Mother disqualified for custody due to abandonment and illegal marriage.

JUDGMENT :

1. Instant writ petition has been filed by the petitioner under Article 226 of Constitution of India, for issuance of writ in the nature of habeas corpus with the prayer that the respondent-State authorities from 1 to 4 be directed to produce the Corpus namely a minor boy Jakwan Khan @ Rakan, his grand son, and be free from the illegal and wrongful confinement of respondent No.5. The prayer of the writ petition is reproduced as under :-

“(i) That the grandson of the petitioner corpus namely Jakwan Khan @ Rakan may be got freed from the illegal or wrongful confinement of private respondent no.5 and official respondent no. 1 to 4 may kindly be directed to produce before this Hon’ble Court and also directed to be given custody of the minor child as the petitioner is already having in previous time, also taking care of future of the minor child.

(ii) That the official respondents may also be directed to deal with the respondent no.5 with heavy hands for kidnapping the minor child Jakwan Khan @ Rakan from the lawful custody of the petitioner by taking strong action against herself looking to the conduct and offence committed by herself.

(iii) That any other order or direction which this Hon’ble Court may deem fit and proper looking to the facts and circumstances of the case may also kindly be passed in favour of the petitioner.”

2. The present writ petition was filed by the petitioner- Rahisuddin Khan on 30.06.2025 and the Coordinate Bench of this Court issued notices to the respondents on 01.07.2025. The learned GA-cum- AAG Mr. Deepak Choudhary appearing on behalf of respondent Nos. 1 to 4 sought time to file reply. By order dated 24.07.2025 SHO Police Station Sadar Bazar, Jodhpur Metro was directed to produce the Corpus on the next date of hearing. On 18.08.2025, the Corpus was presented along with his mother i.e. respondent No.5 against whom the petitioner grandfather has alleged that the child is in her illegal custody. On 21.08.2025, this Court heard learned counsel for the petitioner on the maintainability of the present habeas corpus petition as the minor male child is with biological mother i.e. respondent No.5. During the course of arguments, this Court raised specific query to counsel for the respondent Mr. Manish Vyas regarding (documents filed by the petitioner) annexure 2 which is in respect of second marriage performed by respondent No.5 with one Mohammed Ujair Ansari S/o Mohammed Jubair Ansari and annexure 3 dated 22.05.2019, a complaint made by Sabir Khan, brother of respondent No.5- Sehra Khan, to the Marriage Registrar, Andheri West, Mumbai, by which he requested the authorities not to register the illegal marriage of his sister i.e. respondent No.5. He also requested the authorities to keep this letter, annexure 3, in the record and not to register the illegal marriage as the same was done forcibly (without consent of parents). On being specifically asked to answer the stand of respondent No.5 in respect of above two annexures which are 2 and 3, the learned counsel for respondent No.5 Mr. Manish Vyas, completely denied these documents and stated that no such marriage was performed by respondent No.5 and those documents are not authentic rather fake. As he did not file any response to the habeas corpus petition, therefore, this Court asked, whether, he wish to counter the documents by filing the reply to the writ petition or wish to argue orally, the learned counsel Mr. Manish Vyas, then sought three days time to file reply.

In pursuance to the same, the learned counsel filed an additional affidavit of respondent No.5 Sehra Khan on 26.08.2025. Thereafter, the matter was listed before this Court on 28.08.2025. Learned counsel for the petitioner Mr. CP Soni, on receiving the additional affidavit, then sought three days time to file counter to the additional affidavit. The request of the counsel for the petitioner was accepted and the matter was posted for hearing on 01.09.2025.

On 01.09.2025, the petitioner file