IMPORTANT POINT
A writ of habeas corpus in child custody cases can only be granted if it is established that the custody is unlawful or without authority, with the welfare of the child being the paramount consideration.

JUDGMENT :

(Dr. Yogendra Kumar Srivastava, J.) :

1. Heard Sri Akshay Raghuvanshi, learned counsel for the petitioners and Sri Pankaj Saxena, learned AGA-I appearing for the State-respondents.

2. Pleadings in the petition indicates that the respondent no.5, wife of the petitioner no.2, went back to her maternal home, on 10.08.2018, shortly after her marriage with the petitioner no.2, on 03.05.2018. The respondent no.5 is stated to have been pregnant at that point of time, and she was blessed with a baby boy on 11.01.2019.

3. It is submitted that during this period, the respondent no.5 throughout stayed at her maternal home, and the child was born during the period of her stay at her maternal home.

4. It has also been pleaded that the respondent no.5, after birth of the petitioner no.1 (corpus), stayed at her maternal home, and the child has been under her custody continuously.

5. A case is sought to be set up that the petitioner no.2, father of the petitioner no.1, attempted to meet his son on a number of occasions, but has not been permitted to do so by his father-in-law, respondent no.4.

6. Learned AGA-I pointed out that the petitioner no.2 is stated to have left her matrimonial home, in the month of August, 2018, and thereafter, the petitioner no.1 (corpus) was born on 11.01.2019, while the mother was at her maternal home, and since then the infant is continuously under the custody of her mother; accordingly, the custody of the petitioner no.1 (corpus), a minor child, with his mother, cannot, prima facie, be stated to be illegal and the present petition seeking a writ of habeas corpus would not be entertainable.

7. Counsel for the petitioner has sought to controvert the aforesaid assertion by placing reliance upon a decision in Master Prakhar @ Palash and another Vs. State of UP and others, (2022) ILR 5 All 1459, to contend that in a child custody matter, a petition filed by a parent, seeking a writ of habeas corpus would be entertainable.

8. There can be no quarrel with the aforesaid proposition that in cases of child custody, a petition seeking a writ of habeas corpus may be entertained in a case where it is established that the custody of the child is illegal or without authority. There may also be cases where the custody of the child has been forcibly altered, which renders the present custody illegal, and in the said circumstance, the Court may be persuaded to issue a writ of habeas corpus.

9. The writ of habeas corpus, as is legally well settled, is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.

10. 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 principle is well settled that in such matters the welfare of the child is of paramount consideration.

11. In child custody matters, habeas corpus proceedings may not be utilized to justify or examine the legality of the custody. The power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody. For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed.

12. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare 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