Point of Law: Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

Headnote:
Habeas Corpus - A writ requiring a person under arrest to brought before judge or into court, especially to secure the person's release unless lawful grounds are shown for detention- Hindu marriage Act 1955 - Section 13, 26 - Divorce - Custody of children - Hindu Minority and Guardianship Act - Guardian an Wards Act - Writ of Habeas Corpus for custody of a minor child - Relief which is being sought in the present proceedings is a claim related to custody of the minor child.
Finding of the Court:
The welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently - It has been pointed out that from the date of birth of the child, and in terms of the provisions under Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 the custody of a minor who has not completed the age of five years is to be ordinarily with the mother - In view thereof the custody of child with the mother cannot be said to be illegal - A 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 - This Court is not inclined to exercise its extraordinary jurisdiction in the matter.
Result: Petition dismissed.

JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

1. Heard Sri. Jitendra Kumar, learned counsel for the petitioner and. Sri Sameer Shankar, learned Additional Government Advocate appearing for the State-respondents.

2. The present petition has been filed on behalf of petitioner (minor) through Jai Singh who has asserted to be father of the minor.

3. Pleadings in the petition indicate that soon after the birth of the petitioner (corpus), on 17.02.2018, some dispute arose between his father and mother (Respondent No. 4) and on 22.10.2020 when the petitioner was about two years of age the Respondent No. 4 left her matrimonial home along with the minor child. It is an admitted fact that the Respondent No. 4 has not returned to her matrimonial home since then.

4. Learned Additional Government Advocate on the basis of instructions submits that the Respondent No. 4 along with her minor child is living separately and that some litigation is pending between the parties before the Family Court.

5. Learned counsel for the petitioner submits that the matter which is pending before the Family Court is under Section 13 of the Hindu Marriage Act, 1955 i.e. proceedings for divorce. He states that the only relief which is being sought in the present proceedings is a claim related to custody of the minor child.

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 three and a half years of age (date of birth 17.02.2018).

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 vs. 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 be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:

“11......it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the ch

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