The welfare of the child is the paramount consideration in custody disputes, and habeas corpus is not the appropriate remedy for custody transfer when legal avenues exist.

JUDGMENT :

G.S. Sandhawalia, C.J.

In the present Habeas Corpus Petition, the petitioner, who is father of two minor girls, namely, Ms.Amyra Rattan (at present aged around 9 years) having been born on 15.09.2016 and Ms. Anaysha Rattan (at present aged around 7 years) having been born on 30.10.2018, seeks their custody by way of a writ of Habeas Corpus, on the ground that they are possibly in the illegal and unauthorized custody of respondents No. 6 to 9, who are close relatives of his wife- respondent No. 5 Chery Mohil and in such circumstances seeks direction for handing over the lawful custody of the minors’ being father and natural guardian.

2. The pleadings in the Habeas Corpus Petition goes on to show that the petitioner, who is a practicing Advocate in this Court was also an exceptional sportsman having played international cricket and played Ranji Trophy for Himachal Pradesh and has also represented North India Cricket team in the year 2004. The petitioner was also captain of Himachal Pradesh under-22 team. He was a member of Junior Selection Committee (under-19, under 16 and Under 14 Teams) of Himachal Pradesh Cricket Association (HPCA) and presently he is the member and selector of Sirmaur District Cricket Association.

3. The petitioner solemnized marriage with respondent No. 5 on 10.11.2013 and from the said wedlock, two minor daughters have been born and unfortunately, relationship in the year 2020 got strained between the husband and the wife. As per the averments contained in the petition, respondent No. 5 wife left the company of the petitioner to live with her parents, who were living at Nahan and also has taken the two minor daughters Amyra Rattan and Anaysha Rattan along with her. It is the case of the petitioner himself that he has lost both his parents and his elder brother also, is unmarried and he has no other family member except the wife and two daughters, who are emotionally attached with him. At the time when the wife left the company of the petitioner in 2020, the elder daughter was admitted in Loreto Convent Shimla (Tara Hall) and the younger daughter was not going to School. It is stated that the petitioner was bearing all the expenses of both the daughters. It is averred that minor daughters came back to Shimla and lived with the father at Shimla for about 25 days without the mother respondent No. 5 w.e.f. 01.06.2021 to 25.06.2021. Thereafter respondent No. 5 came back to the matrimonial home for a brief period and on 04.09.2021, she again left her matrimonial home along with daughters to live with her parents at Nahan. The petitioner is stated to have undergone medical treatment in IGMC Shimla for Bone Tuberculosis and surgery for Gall Bladder stone also at IGMC Shimla in the years 2021-2022. It is stated that on both these occasions, despite having knowledge, respondent No. 5- wife never attended the petitioner and he had to take care of himself alone or through his friends.

4. It is stated that the wife filed a case Under Domestic Violence Act,2005 (hereinafter referred to as ‘the D.V. Act, 2005’ for short) on 09.11.2021 at Nahan which is pending adjudication before the Chief Judicial Magistrate, Sirmaur at Nahan. It is also the case of the petitioner that he moved an application under Section 21 of the D.V. Act, 2005, on 18.01.2022 for grant of visitation rights to meet his minor daughters but in the said proceedings no order as prayed was granted or rejected, for almost 2 years and 9 months and the application is stated to be still pending and resultantly, the Guidelines framed by this Court, namely “Child Access & Custody Guidelines” are being violated. Similarly, the averment is made that on 15.12.2022, the petitioner filed a case under Guardians and Wards Act, 1890 only to the extent of visitation rights as prayed in the earlier application but even after lapse of almost ten months, the interim application of the petitioner is still pending in the Court of District Judge, Sirmaur at Nahan and no