IMPORTANT POINT
The court ruled that visitation rights cannot be claimed through habeas corpus when custody is lawful and family court proceedings are ongoing.

JUDGMENT :

Yogendra Kumar Srivastava, J.

1. Heard Sri Sandeep Srivastava holding brief of Ms. Hemlata Srivastava, learned counsel for the petitioners, Sri Pankaj Srivastava, learned A.G.A.-I appearing for the State-respondents and Sri Saurabh Kumar Pandey, learned counsel appearing for the respondent Nos. 4, 5 and 6.

2. Submission of the counsel for the petitioners and also the case set up in the petition is to the effect that the respondent No. 4, who is the wife of the petitioner No. 1, left her matrimonial home on 19.8.2018 alongwith the petitioner No. 2 (corpus), an infant of age about one month at that point of time.

3. Proceedings under Sections 9 and 13 of the Hindu Marriage Act, 1955 (HMA), maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973 (the CrPC), and also a criminal case are stated to be pending between the parties.

4. Counsel for the petitioners submits that the only relief that he seeks to press in the present petition is for grant of visitation rights.

5. Counsel for the State-respondents and also the counsel for the contesting respondent No. 4 submit that since the relief sought in the present petition is confined to grant of visitation rights and proceedings relating to matrimonial disputes between the parties are pending before the Family Court, the present petition seeking a writ of habeas corpus would not be entertainable.

6. The fact with regard to the petitioner No. 1 and respondent No. 4 (i.e. the husband and wife) living separately since August, 2018 is undisputed. It is also an admitted fact that divorce proceeding between the husband and the wife is pending before the Family Court, and that the petitioner No. 2 who is a minor is presently under the custody of her mother.

7. It is also an admitted position between the parties that the petitioner No. 2 (minor daughter) who was born on 12.7.2018, has continuously stayed with her mother since August, 2018, when she is stated to have left her matrimonial home.

8. The claim of the petitioner No. 1 is confined to a relief for grant of visitation rights.

9. The writ of habeas corpus is a prerogative writ, an extraordinary remedy, evolved under the common law and incorporated in our constitutional law, having the objective to protect and safeguard individual liberty.

10. In 'Judicial Remedies in Public Law' (Judicial Remedies in Public Law by Clive Lewis, 3rd Edition), the writ of habeas corpus has been described as follows:

“The writ of habeas corpus is a writ of right but not of course. This means that the applicant has to show a prima facie case that he is being unlawfully detained.”

11. The above principle with regard to a writ of habeas corpus being a writ of right and not a writ of course and that it may be granted only on reasonable ground or probable cause being shown, has been reiterated in Mohammad Ikram Hussain v. State of U.P. and others, 1964 AIR 1625; Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

12. The nature and scope of writ of habeas corpus was considered in the case of Kanu Sanyal (supra) and the Supreme Court after tracing the development of the writ of habeas corpus by Common-Law Courts in England held that the writ of habeas corpus is essentially a procedural writ dealing with the machinery of justice but not the substantive law with an object to secure release of a person who is illegally restrained of his liberty.

13. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

14. In the instant case, the minor child, soon after her birth, and ever since she was infant of about one month, has been in the custody of her mother (respondent No. 4), who had admittedly left her matrimonial home, and