The welfare of the child is the paramount consideration in custody disputes, and the custody of a minor child below 5 years should ordinarily be with the mother, but not necessarily so.

ORDER :- A petition under Article 226 of the Constitution of India has been filed by the natural guardian and mother for a writ of habeas corpus directing her husband to produce her two year old son. The applicant contended that the marriage with the opposite party was solemnized in the year 2004 and a male child was born in the year 2005. On account of harassment and the demand for dowry, which the applicant was unable to accede, the opposite party threw her out on 10-7-2007 and illegally took the custody of the male child. In paragraph 11, the applicant alleged that, she is now residing with her parents and contended that she is the mother and natural guardian of the child and that the opposite party has illegally detained the child without any authority of law. It was also contended that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of the child below 5 years of age is always with the mother and therefore, prayed that the child be produced before the Court and orders for the release of the child be passed.

2. The opposite party appeared and submitted that the marriage was solemnized between the parties on 22-4-2004 and a male child was born on 29-10-2005. The opposite party alleged that the applicant, namely, the mother of the child had developed an illicit relationship with her brother-in-law and had left the husbands house on 20-11-2005 on her own will and volition and, since then, is living with her brother-in-law. The opposite party further submitted that since then, the child was being looked after by himself and his parents. The opposite party further submitted that a suit under Section 9 of the Hindu Marriage Act was filed in the Family Court, being suit No. 439 of 2006, for the restitution of the conjugal right which is pending consideration, in which the applicant has appeared and is contesting the matter and has submitted that she was not willing to live with her husband. The opposite party further contended that the applicant has also filed an application under Section 24 of the Hindu Marriage Act for maintenance which is also pending. The opposite party further submitted that the mother has no funds of her own and cannot bring up the child and since the welfare of the child is of paramount importance, the custody should not be given to the mother. The opposite party contended that on the facts and the circumstances stated aforesaid, the application for a writ of habeas corpus was not maintainable and was liable to be rejected.

3. In rejoinder affidavit, the applicant submitted that she cannot live any longer with the husband and submitted that her life would be in danger, if she has to live or reside with her husband. The opposite party further submitted that she had lodged an F.I.R. against the husband and that she cannot survive without her son and that she would make every effort for the welfare of the child.

4. Heard Sri D. K. Mishra, the learned counsel for the applicant and Sri Rajendra Pratap Singh, the learned counsel for the opposite party and the standing counsel for the State. Pursuant to an earlier order of the Court, the child has been produced before the Court today.

5. With regard to the submission of the learned counsel for the opposite party that the application for a writ of habeas corpus was not maintainable, the learned counsel for the applicant placed reliance upon a decision of the Supreme Court in Capt. Dushyant Somal v. Smt. Sushma Somal and others, 1981 (2) SCC 277 : AIR 1981 SC 1026 wherein it was held that a writ of habeas corpus should not be issued against a parent for the custody of a child but, the Supreme Court held that this would not mean that a writ of habeas corpus would not lie at all and that a writ could not be issued against the parent who with impunity kept the child in illegal custody. The Supreme Court held that a prerogative writ of habeas corpus would lie even where an alternate remedy under the Guardians and Wards Act was available to a pa

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