Point of law: Custody of child - child was forcibly taken away by the father from the custody of the mother. - Writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child

JUDGMENT :

Yogendra Kumar Srivastava, J.

1. Heard Sri Bhishm Pal Singh, learned counsel for the petitioner, Sri Abhay Nitin Singh, learned counsel for the respondent nos. 6 to 9 and Sri Vinod Kant, learned Additional Advocate General, alongwith Sri Pankaj Saxena, learned A.G.A.I for the State respondents.

2. Pursuant to the directions issued earlier, the corpus (minor child) of age about seven and a half years, has been brought in Court by the respondent no. 6, who is stated to be his father, and has been identified by the counsel for the said respondent.

3. The basic facts which are undisputed are that the mother of the corpus is living separately from her husband (respondent no. 6) since the year, 2017. It has been pointed out that on 22.8.2019 the corpus (minor child) was taken away by the respondent no. 6 (father) to Ajmer, and that he is living with his father since then under his care and custody. A mutual agreement on a notarial affidavit is stated to have been entered into between the parents of the minor child on 02.09.2019. Amongst the various conditions which were agreed upon between the parties, one was with regard to the minor child having been handed over to the mother with a further stipulation that he would remain with the mother, subject to certain conditions.

4. The present petition, which has been filed through the mother of the minor child, contending that the custody of the minor has not been handed over to her and that the minor is being illegally detained by the respondent no. 6 (father of the minor child) and the other respondents i.e. respondent nos. 7, 8 and 9.

5. From the submissions made by the counsel for the parties, it appears that there is a serious dispute with regard to the terms and conditions of the agreement, which is stated to have been entered into between the husband and the wife, with both the parties alleging that the other has not abided by the terms thereof.

6. The dispute between the parties, which is sought to be agitated by means of the present petition, essentially is, regarding the custody of the minor child, who is presently about seven and a half years of age (date of birth09.08.2013).

7. In a petition seeking a writ of habeas corpus in a matter relating to a claim for custody of a child, the principal issue which is to be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal.

8. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain vs. State of U.P. and others, AIR 1964 SC 1625 and Kanu Sanyal vs. District Magistrate Darjeeling, (1973) 2 SCC 674.

9. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

10. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Nithya Anand Raghvan v State (NCT of Delhi) and another, (2017) 8 SCC 454, and it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.

11. Taking a similar view in the case of Sayed Saleemuddin vs. Dr. Rukhsana and others, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can