The main legal point established in the judgment is that the custody of a minor child with the father as the natural guardian cannot be held illegal or unlawful unless it is in breach of some authority or order of law. The court emphasized the importance of the welfare of the child and the need to follow the prescribed legal procedures for seeking custody.

JUDGMENT

Vinod S. Bhardwaj, J. (Oral) - The instant Criminal Writ Petition has been filed under Article 226 of the Constitution of India for issuance of writ in the nature of Habeas Corpus and for appointment of a Warrant Officer, with a roving writ to search for the alleged detenue namely Mithli Sahni, aged 12 years, allegedly the son of the petitioner.

2. Learned counsel appearing on behalf of the petitioner acknowledge that the petitioner and respondent No.5 lived and cohabited together as husband and wife at Ludhiana and that the child namely Mithli Sahni was born out of the said wedlock on 06.12.2012. It is submitted that owing to matrimonial dispute between the parties, the petitioner was allegedly turned out of the matrimonial house on 28.07.2021. He further submits that the petitioner was thereafter constrained to file a petition under Section 13 of the Hindu Marriage Act, 1955 for seeking a decree of divorce from respondent No.5 on grounds of cruelty.

3. It is contended that a compromise was eventually drawn between the parties and the case filed by the petitioner was withdrawn on the pre-condition that the petitioner as well as the minor child would reside with the respondent No.5 in their matrimonial house.

4. He further submits that a petition under the Guardian and Wards Act bearing GW No. 129 of 2021 titled as 'Sunil Kumar versus Shipra' was filed by respondent No.5-father of the minor Mithli Sahni and as such it was established that custody of the minor child was with the petitioner. He further submits that on 03.11.2021, the respondent No.5 took the petitioner along with the minor son to the matrimonial house but on 21.04.2022, the said respondent started misbehaving with the petitioner and turned her out of the matrimonial house. At the relevant point of time, the child was at school and that when the petitioner went to pick up the child from the school, she came to know that respondent No.5 had already picked up minor child from the school.

5. Learned counsel for the petitioner contends that she has inquired that child is not going to the school for the last 2 weeks and has apprehensions about the well-being of the child.

6. He further places a reference to the judgment of this Court in the matter 'Mandeep Kaur versus State of Punjab' reported as 2021 (1) R.C.R. (Civil) 152 to contend that writ of Habeas Corpus is maintainable even if custody of child with father is not illegal. He places reliance on the fact that the welfare of the child is of paramount importance and thus the writ Court should direct action and seek production of the detenue to restore the custody of the minor child to the petitioner.

7. I have considered the submission advanced by learned counsel appearing on behalf of the petitioner and have gone through the documents appended along with the petition.

8. It is not disputed that the parties to the dispute are governed by provisions of Hindu Guardian and Wards Act and that as per provision of the said Act, the father is natural guardian of the child and mother becomes natural guardian only in the absence or demise of the father. It is also not in dispute that the custody of the child is with the father. There is no valid basis for this Court to assume that the child has been illegally detained. There is also no basis to assume that there is any imminent danger of physical harm to the safety and security of the said child. Ordinarily, this Court would resolve to invoking its jurisdiction under writ of Habeas Corpus once it apprehends that there is danger to the life and security of the detenue, however, where such allegations are not substantiated, the proceedings under the writ of Habeas Corpus are not maintainable and appropriate proceedings are required to be undertaken by the estranged parties before the Court of Guardians and Wards. A writ of Habeas Corpus cannot be used as a panacea to circumvent the procedure prescribed in law for seeking custody of the child. There is no reason why the petit