The main legal point established in the judgment is that in child custody matters, the power of the High Court in granting the writ of Habeas Corpus is confined to cases where the detention of a minor is by a person who is not entitled to his legal custody. The court emphasized the importance of exhausting alternative remedies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act before seeking extraordinary writ jurisdiction.

JUDGMENT :

1. Petitioner No.2, through the medium of present petition, has sought a writ of Habeas Corpus against the official respondents seeking production of his minor son (petitioner No.1) and to handover his custody to him. In the petition, it has been alleged that marriage between petitioner No.2 and respondent No.4 was solemnized on 04.02.2013 at Jammu and out of this wedlock, petitioner No.1 was born on 19.08.2014. It has been further submitted that respondent No.4, after six months of marriage, started misbehaving with petitioner No.2 and his family members and despite best efforts on the part of petitioner No.2 and his family members, the things did not improve.

2. On 01.09.2020, respondent No.4 without any justifiable cause left her matrimonial home after quarreling with petitioner No.2 and started living separately. She also took the custody of her minor son (petitioner No1). It has been submitted that respondent No.4 filed a petition under Section 12 of Protection of Women from Domestic Violence Act against petitioner No.2 and his family members before the Court of Special Excise Mobile Magistrate, Jammu, but the same was dismissed by the learned Magistrate on 11.03.2022 for non-prosecution and that application for its restoration is pending before the same Court. It has been further submitted that a petition under Section 13 of Hindu Marriage Act has also been filed by respondent No.4 against petitioner No.2 which is pending before the Principal Judge, Family Court Jammu.

3. According to petitioner No.2, respondent No.4 developed intimacy with respondent No.5 and she started living with her initially at Sanjay Nagar, Jammu along with her minor son (petitioner No.1) and thereafter, she left for Mumbai and shifted her son without consent of petitioner No.2. It has been submitted that petitioner No.2 also went to Mumbai and stayed with respondents No. 4 and 5 for about 15 days, but he was maltreated by them, as a result of which, petitioner No.2 came back to Jammu. It has been further submitted that petitioner No.1, the minor son was willing to accompany petitioner No.2 when he left for Jammu from Mumbai, but he was not allowed to accompany him. Petitioner No.2 is also stated to have approached the police with a complaint against respondents 4 and 5, but no action has been taken. According to petitioner No.2, his minor son (petitioner No.1) is under illegal custody of respondents 4 and 5. Hence, the present petition.

4. Notice of the petition was issued to the respondents and respondent No.4 was also directed to produce petitioner No.1 before the Court. Pursuant thereto, Sh. Ayushman Kotwal entered appearance on behalf of respondent No.4 and respondent No.4 also appeared in person before this Court along with her minor son (petitioner No.1) on 23.04.2024. Mr. Kotwal, learned counsel raised a preliminary objection as regards the maintainability of the petition. He has contended that the instant petition is not maintainable, for the reason that the custody of minor son with her mother, cannot be termed as ‘illegal detention’, therefore, a petition in the form of Habeas Corpus cannot be maintained.

5. I have heard learned counsel for the parties on the question of maintainability of the petition and perused the record.

6. Learned counsel appearing for petitioner No.2 has contended that the circumstances in which respondent No.4 has taken over the custody of petitioner No.1, the minor son, clearly indicates that he has been illegally detained. The learned counsel has submitted that the behavior of respondent No.4 towards petitioner No.2 has all along been cruel in nature and that the minor son desires to live with his father, but he is being prevented from doing so by respondents 4 and 5. Learned counsel for petitioner No.2 has contended that while considering the maintainability of a Habeas Corpus petition, the Court has to take into account the best interest of the minor child and in the instant case, the best interest of p