The main legal point established in the judgment is that the writ of habeas corpus is maintainable to restore the custody of minors to the lawful guardian, taking into account the welfare of the minors and the rights of the grandparents in the custody dispute.

K.C.Puri, J.

1. Jaswinder Kaur-petitioner has filed this petition under Article 227 of the Constitution of India for the issuance of a writ in the nature of habeas corpus for the release of detenues/children namely Mohit Sidhu, aged 6 years son and Ekta son and daughter respectively of deceased Anil Kumar, who are in illegal custody of respondent Nos. 4 and 5.

2. It has been alleged by the petitioner that she was married with Anil Kumar son of respondent Nos. 4 and 5 about nine years ago. Out of this wedlock, one daughter namely Ekta aged about eight years and one son namely Mohit aged about six years took birth and the petitioner was living at Jalandhar with her husband Anil Kumar, who was serving in PAP Jalandhar. Unfortunately Anil Kumar, husband of the petitioner died on 2.3.2009 at Jalandhar after brief illness. The dead body of the deceased was taken to his village chamiari for cremation and the petitioner along with her children/detenues attended the cremation. After the cremation of Anil Kumar, the children of the petitioner were taken by respondent Nos. 4 and 5 forcibly and on demand by the petitioner, she was given merciless beating and thrown out of the house by another sons of respondent Nos. 4 and 5.

3. It has been further alleged that respondent No. 4 who is a retired person and is aged about 65 years and the respondent No. 5 is aged about 60 years. They have three sons and one daughter, who are already married and are living in the village with them. The respondents No. 4 and 5 have illegal eyes over the dues of Anil Kumar-deceased, which have been paid to the petitioner by the Government being government servant. The petitioner being a mother has every right to have the custody of her children but the respondent Nos. 4 and 5 forcibly took the detenues without the consent of the petitioner.

4. On notice, respondent Nos. 1 to 3 have filed reply by way of affidavit of Manjit Singh, PPS Deputy Superintendent of Police, (R-1), District Jalandhar and took up preliminary objections the Jaswinder Kaur petitioner was married with Anil Kumar. Out of this wedlock, two children were brought up by respondents Nos. 4 and 5, Anil Kumar was serving in the Police Department and he died due to illness. The petitioner came at the time of the cremation of Anil Kumar. The respondent Nos. 4 and 5 have not detained the children illegally but were brought up by the respondent Nos. 4 and 5 being grandparents. Therefore, the petitioner has no cause of action to invoke the jurisdiction of this Court and the present petition is not maintainable and liable to be dismissed on this ground alone.

5. It has been further alleged that no case or inquiry is pending with them. However, the petitioner moved an application earlier to the Senior Superintendent of Police, Jalandhar which was inquired into by the lncharge Women Cell, Jalandhar. Since the matter of the said application was of a civil nature, the same was consigned to the records. The petitioner, has, therefore, no cause of action to array them as party to the present petition.

6. On merits, they denied all the averments and prayed for dismissal of the petition.

7. Respondent Nos. 4 and 5 filed separate reply and took up preliminary objection that the alleged detenues are staying with them since long and they are not in unlawful custody and the present petition is not maintainable. The have already filed petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 (in short - the Act) read with Section 6 of Hindu Minority and Guardian Act, 1956 in short - the Guardian Act) for their appointment as Guardian of minor Ekta and minor Mohit Sidhu.

8. On merits, it has been pleaded that deceased-husband of the petitioner was working in the Punjab Police at Jalandhar. During his life time petitioner was not having good relations with her deceased husband, who fell Seriously ill and he was admitted in the hospital and the petitioner left both the children at the house of the answ