Hon’ble N.A. Moonis, J.—Heard learned counsel for the applicants,Sri Rajiv Lochan Shukla, learned counsel for the opposite party No. 2 and learned AGA and have been taken through the record.

2. At the very outset, it revealed that the counter-affidavit filed on behalf of the respondent No. 3 is not in accordance with the Rules of the Court as the deponent has neither put the signature/thumb impression on any page of the counter-affidavit nor the Advocate has put his signature identifying the deponent while it is mandatory under the provisions of the High Court Rules to swear each and every paragraphs of the affidavit and the deponent has to put his signature/thumb impression. The person swearing an affidavit must be identified by the Advocate who is reasonably satisfied as to his identity. The striking feature of the counter-affidavit is that the Oath Commissioner has only put his seal without examining the contents of the counter-affidavit as to whether he has filled all the paragraphs of the affidavit and whether the deponent has put his signature/thumb impresion and has been identified by the concern Advocate or not. This type of casual practice on the part of the Oath Commissioner is highly despicable and scornful. The Oath Commissioner is not expected to discharge his duties in non-challant and insouciant manner by keeping on shelf the Rules of the Court. The counter-affidavit not being in accordance with Rules of the Court will not be treated as part of the record.

3. By means of the present petition under Article 226 of the Constitution of India, the petitioners have invoked extra ordinary jurisdiction of this Court with a prayer to direct the respondent No. 3 to produce the corpus/petitioner No. 1 namely Baby Kavya Awasthi and the corpus Baby Kavya Awasthi may be given to her natural mother the petitioner No. 2.

4. The aforesaid Habeas Corpus petition came up before another Bench of this Court on 1.3.2013. The Hon’ble Single Judge was pleased to issue notice to the respondent No. 3 to produce the corpus before this Court positively on 22.3.2013 fixing the date for disposal of the petition. The notice was directed to be served through Chief Judicial Magistrate concern.

5. Pursuant to the aforesaid order dated 1.3.2013, the respondent No. 3 with grand daughter Baby Kavya Awasthi is present before this Court. The learned counsel appearing on behalf of the respondent No. 3 has raised preliminary objection with regard to maintainability of the Habeas Corpus petition and has also filed counter-affidavit on behalf of the respondent No. 3. It is contended that the remedy for the petitioner No. 2 lies under the Guardianship & Wards Act. The grand father of the petitioner No. 1 is entitled to the custody in the best interest of her goodness and welfare under the circumstances of the case.

6. In order to find out whether there is such a bar to the entertainment of a writ petition, the Court will have to examine the facts and circumstances of each case and the redressal that is sought, though it is impossible to lay any hard and fast rule.

7. It is submitted by the learned counsel for the respondent No. 3 that Baby Kavya Awasthi, the grand daughter of the respondent No. 3 is living along with her grand parents after the demise of her father. The petitioner No. 2 who is the natural mother of the minor Baby Kavya Awasthi had left the matrimonial house out of her own accord leaving behind the corpus and since then Baby Kavya Awasthi, the petitioner No. 1 is living with her grand parents happily who have been taking full care of her nourishment and welfare. The respondent No. 3 who is the grand father of the petitioner No. 1 cannot be presumed to be an illegal guardian and Baby Kavya Awasthi cannot be averred to be in kept in illegal custody. The respondent No. 3 has lost his son on account of maltreatment meted out to him by the petitioner No. 2. Now the respondent No. 3 cannot be deprived of the custody of his grand daughter