IMPORTANT POINT
The court established that under the Guardians and Wards Act and personal law, a biological mother has a right to custody of her minor child, and any illegal detention by a non-guardian is subject to habeas corpus proceedings.

JUDGMENT :

(Dr. Yogendra Kumar Srivastava, J.) :

1. Heard Sri Akhilesh Kumar Tiwari, learned counsel for the petitioners, Ms. Harshita Rani, learned A.G.A. appearing for the State-respondents and Sri Faizan Siddiqui, learned counsel appearing for the respondent nos. 4 and 5.

2. The present petition has been filed with the assertion that the petitioner no. 2, mother of the petitioner no. 1 (corpus), was ousted from her matrimonial home, on 08.09.2023, by her husband, respondent no. 4, and the petitioner no. 1 (corpus), minor daughter, who at that point of time was less than two years, was detained.

3. It has been further asserted that the respondent no. 4 had thereafter gone out of the country and the petitioner no. 1 (corpus) was being illegally detained by the respondent No. 5, motherinlaw of the petitioner no. 2.

4. Pursuant to the rule nisi issued earlier, the petitioner no. 1 (corpus), was produced before the Court, on the previous date i.e. 16.04.2024, by the State authorities, along with the respondent no. 5.

5. Taking into consideration the age of the petitioner-corpus and that the petitioner no. 2 being her biological mother would be legally entitled to have her custody, by way of an interim arrangement, and as agreed by counsel for the parties, the petitioner no. 1 (corpus) was permitted to go along with the petitioner no. 2.

6. Today, upon the case case being taken up, it has been pointed out that the petitioner no. 2 is present in Court, along with the petitioner no. 1 (corpus).

7. The petitioner no. 1 (corpus), and the petitioner no. 2 have been identified Sri Akhilesh Kumar Tiwari, learned counsel.

8. Sri Faizan Siddiqui, learned counsel appearing for the respondent nos. 4 and 5 has stated that the respondent no. 4 is out of the country, and that there are no instructions as to when he would return.

9. Learned A.G.A., on the basis of an enquiry made from the petitioner no. 2, in Court, submits that she has stated that the petitioner no. 1 (corpus) is being taken care of by her, since the previous date, when the corpus was permitted to go along with her in terms of the order passed by the Court by way of an interim arrangement. She has further stated that she has sufficient means to take good care of her minor child, petitioner no. 1 (corpus).

10. A writ of habeas corpus is prerogative process for securing the liberty of the subject by affording effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody would have to be treated as equivalent to illegal detention for the purpose of granting a writ directing custody of the minor child.

11. The law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890[GWA]. Section 17 of the GWA relates to matters to be considered by the court in appointing a guardian, and in terms thereof it is provided that the court while deciding the question of guardianship of a minor, shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, the provisions of the personal law are to be applied consistently with the provisions of the GWA, and insofar as the question of custody is concerned, the rights of parties in the present case, are to be governed by the personal law.

12. The matters relating to 'Guardianship of Person and Property' are provided under Chapter XVIII of Principles of Mahomedan Law,[Mulla, Principles of Mahomedan Law, 22nd Edition] and PartA thereof pertains to 'Appointment of Guardians'. In terms of Section 349, all applications for the appointment of a guardian of the person or property or both of a minor, are to be made under the GWA.

13. Further, Section 351 of Principles of Mahomedan Law, which is in terms of Section 17 of the GWA, imposes a duty upon the