JUDGMENT :

Shree Prakash Singh, J.

Heard Sri Vijay Kumar Ojha, learned counsel for the petitioners, Sri Dhiraj Srivastava, learned counsel for the respondent Nos. 3 & 4, Sri Mithlesh Kumar, learned AGA for the State and perused the record.

2. By means of this petition, the petitioner No. 2 has sought writ of Habeas Corpus, directing the respondents to produce the corpus (petitioner No. 1), namely, Vinayak Tripathi before this Court and further prayed that the custody of the petitioner No. 1 may be handed over to the petitioner No. 2.

3. At the very outset, learned counsel for the opposite party Nos. 3 and 4 has raised preliminary objection regarding maintainability of the instant Habeas Corpus petition. He submits that writ of Habeas Corpus cannot be issued where there is an statutory alternative remedy is available to the person aggrieved and as such if there is any grievance to the petitioner No. 2, he can take the recourse of invoking the relevant provisions of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 'Act 32 of 1956') or he may approach the Court of civil competence. Further submitted that after the death of the mother, the child is gladly living with the grand maternal parents and now his admission has got done, in a reputed school and he is pursuing his study. Adding his contention, he submits that the writ of Habeas Corpus can be issued in an event where the custody is unlawful and that can be termed as illegal detention. He argued that in the instant matter, neither the child was abducted nor that was taken away unlawfully from the lawful guardianship of his father. Further submission is that, for providing custody of a minor child, is to be examined on the ground of consideration of not only legal right of the parties but more importantly the welfare of child. In the instant matter, the child is living with the opposite party Nos. 3 and 4 for last 7 to 8 years and the petitioner No. 2 did not make any effort or objection for his custody though admittedly, the fact was in his knowledge that the child is in custody of them. He added that at the very inception, the child was taken away by opposite party Nos. 3 and 4 when no one was there, to look after the child. He added that the mother of the child as well as child were ailing with serious burn injuries and the opposite party Nos. 3 and 4 were looking after them. Thus, the submission is that the custody of the child with opposite party Nos. 3 and 4 cannot be termed as illegal detention, and therefore, the writ of Habeas Corpus would not lie in the instant matter and remedy lies elsewhere and thus, it has been prayed that instant Habeas Corpus writ petition is liable to be dismissed on this ground alone.

4. In support of his contention, the counsel for the opposite party Nos. 3 and 4 has placed reliance on the judgement and order rendered in the case of Captain Dushyant Somal v. Smt. Sushma Somal and others; 1981(2) SCC 277 and has referred para 3 of the judgement which is extracted as under;

''3. There can be no question that a Writ of Habeas Corpus 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. Clear grounds must be made out. Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the contumacious conduct of such a