Point of Law: Custody of minor children - Natural guardian - Private respondent is none other than biological mother of minor children - It may be presumed that custody of children with their mother is not unlawful. It would only be in an exceptional situation that custody of minor may be directed to be taken away from mother for being given to any other person including father of child, in exercise of writ jurisdiction.

JUDGMENT :

1. Heard Sri Rajesh Maurya, learned counsel for the petitioners and Sri Ratnendu Kumar Singh, learned A.G.A. appearing for the State respondents.

2. The present petition for a writ of habeas corpus has been filed on behalf of two minor children of age about 11 years and 5 years respectively, by one Ramesh Chandra Kanaujiya asserting himself to be their father and natural guardian. It is sought to be contended that the two minor children, who are living with respondent no. 4 their mother, are under her illegal custody, and accordingly Ramesh Chandra Kanaujiya, being the father, has claimed their custody.

3. The records of the case reflect that earlier a Habeas Corpus Writ Petition No. 561 of 2020 (Meenu Devi Kanaujiya Vs. State of U.P. and 3 others) was filed by Ramesh Chandra Kanaujiya on behalf of his wife for a writ of habeas corpus by claiming that she was under an illegal detention. In the aforestated writ petition, pursuant to issuance of a rule nisi, the wife, Smt. Meenu Kanaujiya, was produced before the Court on 10.11.2020 and considering the stand taken by her, it was held that no case of illegal confinement or illegal detention had been made out and in view thereof the rule nisi stood discharged and the petition was dismissed.

4. The pleadings in the petition indicate that the respondent no. 4 is working as a staff nurse at Community Health Centre, Dasna in District Ghaziabad.

5. It is undisputed that the respondent no. 4 is living independently and separately from her husband and the two minor children, petitioner nos. 1 and 2, are under her care and custody. The judgment and order dated 10.11.2020 passed in earlier Habeas Corpus Writ Petition No. 561 of 2020 also indicates that the respondent no. 4 is living separately from her husband on her own free will.

6. Learned counsel for the petitioners has not disputed the aforesaid fact with regard to the respondent no. 4 living separately and having her own independent source of income and the two minor children being under the care and custody of the respondent no. 4, their mother.

7. Learned A.G.A. appearing for the State respondents points out that the custody of the minor children with their mother in the facts and circumstances of the case cannot be stated to be illegal and any claim which is sought to be set up on behalf of the father with regard to guardianship or custody may be agitated before the appropriate forum and a petition for a writ of habeas corpus would not be entertainable in the facts of the case.

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