Point of Law: Custody of minor - Petitioner being father of the minor and natural guardian in terms of Section 6 of the Act of 1956 would be entitled to custody of the minor particularly since it is admitted that he has a better financial condition to look after the minor himself.

JUDGMENT :

1. Heard Mr. Samarth Saxena, learned counsel for petitioner, learned Additional Government Advocate for opposite parties 1 to 3 and Mr. Anil Kumar Mishra, learned counsel for opposite parties 4 to 7.

2. This petition for a writ in the nature of Habeas Corpus has been filed for a direction to opposite parties concerned to produce Garv Mishra, minor son of petitioner and for his custody to be handed over to petitioner.

3. Learned counsel for petitioner submits that the detenu Garv Mishra is only one and half years old with his date of birth being 05.09.2018. It is submitted that opposite parties 4 and 5 are the parents of wife of petitioner who passed away on 10.08.2019. Opposite parties 6 & 7 are her brothers with opposite party no.6 being married and having his own family and opposite party no.7 being unmarried as yet.

4. It is noticed from the order sheet that the issue pertaining to maintainability of a writ petition for habeas corpus seeking custody of child had been framed earlier. With regard to the issue of maintainability of a petition for habeas corpurs seeking custody of a minor child has been dealt with by Hon'ble the Supreme Court in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 SCC 42.

5. In the aforesaid case, the issue was with regard to maintainability of a writ of habeas corpus for custody of minor when efficacious alternative remedy is available under the Hindu Minority & Guardianship Act, 1956 (hereinafter referred to as the Act of 1956). Hon'ble the Supreme Court in the aforesaid case thereafter has held that in child custody matters, a writ in the nature of habeas corpus is maintainable where it is proved that detention of minor child by a parent or others was illegal and without authority of law. It has subsequently also been held that the welfare of the child is of paramount interest and where the court is of the view that a detailed enquiry is required, the court would decline to exercise the extra-ordinary jurisdiction and direct the parties to approach Civil Court. It has been further held that it is only in exceptional cases, that rights of the parties to the custody of minor will be determined in a petition for habeas corpus. Relevant paragraphs of the aforesaid decision are as follows :-

"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."

"20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court