The welfare of the child is paramount in custody matters, and the extraordinary jurisdiction for habeas corpus depends on establishing unlawful detention.

JUDGMENT :

1. This habeas corpus writ petition has been filed by seeking following reliefs:

i. Issue a writ order or direction in the nature of Habeas Corpus directing the respondent no. 4 to produce the corpus before this Hon'ble Court and hand over the custody of the Corpus in favour of the petitioner, so that justice may be done.

ii. Issue a writ order or direction in the nature of Habeas Corpus and permit the petitioner to meet his son twice in a month, so that justice may be done.

iii. Issue any suitable order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, so that justice may be done.

iii. Award the cost of the petition in favour of the petitioners.

2. Heard learned counsel for the petitioners and learned A.G.A. for the State and perused the record.

3. It has been argued by the learned counsel for the petitioners that petitioner no.2 is father of petitioner no.1 Gauransh (minor)/corpus and that he is in the custody of respondent no.4, who is mother of the said corpus. The corpus is aged only about five years. There is matrimonial dispute between petitioner no.2 and his wife/respondent no.4 and the petitioner No. 2 is paying maintenance for the petitioner No.1 regularly. Learned counsel submitted that being father and natural guardian of minor child, he has a right for custody of his child and thus his custody be handed over to the petitioner No.2. It was submitted that the respondent No.4 is not even allowing petitioner No.2 to see and meet the child and alternatively it was also submitted that petitioner No.2 be permitted to meet his son/corpus twice in a month.

4. Learned AGA has opposed the petition.

5. It is well settled that writ of habeas corpus is a prerogative writ and an extraordinary remedy. 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 case of Sayed Saleemuddin vs. Dr. Rukhsana and others (2001)5 SCC 247 and 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. In said case it was held as under:-

"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 child is of paramount consideration of the Court…"

6. Similarly, in the case of Nithya Anand Raghvan v State (NCT of Delhi) and another 2017 8 SCC 454, 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. The relevant observations made in the judgement are as follows:-

"44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the pers