The welfare of the child is of paramount consideration in child custody disputes, and decisions should be made based on the best interests of the child.

ORDER

Jasgurpreet Singh Puri, J. (Oral). - The present petition has been filed under Article 226 of the Constitution of India seeking a writ in the nature of Habeas Corpus for directing the official respondents to trace out and produce before the Court the minor son of the petitioner namely Shahbaaz Singh who according to the learned counsel for the petitioner is in the illegal custody of respondent No.5 who is the wife of the petitioner and mother of alleged detenue.

2. Before discussing the merits of the case, a brief background of the case needs to be mentioned here.

3. The petitioner and respondent No.5 married with each other on 02.01.2012 and on 21.11.2014 they were blessed with a baby boy namely Shahbaaz Singh. However, matrimonial dispute arose between the petitioner and respondent No.5 and on 08.12.2018 the petitioner (father)filed a civil suit for injunction for restraining the respondent No.5 (mother) from taking forcible custody of the minor son vide Annexure P-l. Notice in the suit as well as the interlocutory application was also issued by the learned Civil Judge, Patiala. However, no interim order was passed nor any kind of injunction order was passed and rather the matter was also sent to the Mediation Centre but according to the learned counsel for the parties, the mediation had failed. Thereafter, respondent No.5 (mother) approached this Court seeking a writ in the nature of Habeas Corpus in Criminal Writ Petition No. 17 of 2019 on the ground that the sister of the petitioner had illegal custody of the child and therefore, a writ in the nature of Habeas Corpus was sought. However, this Court vide order dated 08.01.2019 (Annexure P-3) observed that there is no allegation that the child was snatched away or taken away forcibly and that mother of child is also residing on the first floor separately in the matrimonial house. The father of child who is present petitioner was not made party in that petition and it was observed by this Court that if the mother of child who is respondent No.5 in this petition wanted custody of the minor child, then for that purpose remedy lies before the Guardian Judge by filing a petition, who will determine the dispute regarding the custody of the minor keeping in view the paramount consideration and welfare of the child, as per law and, therefore, the petition was dismissed by holding that it was not maintainable. Thereafter, vide Annexure P-4 the respondent No.5 (mother) filed a petition under Section 25 of the Guardian and Wards Act before the learned Principal Family Court, Patiala for the custody of the child and again the matter was sent to the Mediation Centre but the mediation again failed.

4. Even prior to the proceedings before the Family Court, the petitioner had filed a petition for divorce under Section 13 of the Hindu Marriage Act against respondent No.5 on the grounds of cruelty and desertion but the same is also pending before the learned Court at Patiala.

5. However, as per the allegations of the petitioner, during the pendency of the petition before the learned Family Court for the grant of custody, the respondent No.5 on 07.11.2019 took away the child from the school and on the next day i.e. on 08.11.2019 an FIR was registered against respondent No.5 under Sections 346/120-B IPC pertaining to wrongful confinement vide Annexure A-3 against her. Thereafter on 27.11.2019 the respondent No.5 withdrew the petition under Section 25 of the Guardian and Wards Act. The aforesaid FIR is still pending investigation and the petitioner (father) has now filed the present petition seeking a writ in the nature of Habeas Corpus on the ground that the child is in illegal custody of respondent No.5 (mother). The present petition was filed on 09.12.2019 and on 30.01.2020 on joint request of the learned counsel for the parties, the matter was referred to the Mediation and Conciliation Centre of this Court but now according to the learned counsel for the parties, this mediation has also fa