ORDER:

(Per Hon‟ble Sri Justice Cheekati Manavendranath Roy)

This Writ Petition for habeas corpus is filed seeking direction to the respondent-police officials to produce the two minor children by name Mohammed Atik Ahmed, aged about 12 years and M.D. Arshad Ahmed, aged about 8 years, respectively, who are in the custody of the 5th respondent, before the Court and to deliver custody of them to the petitioner, who is their mother.

2. Heard learned counsel for the petitioner, Sri Y.N.Vivekananda, learned Government Pleader attached to the office of learned Advocate General, appearing for official respondents 1 to 4 and learned counsel for the 5th respondent.

3. The petitioner is wife of respondent No.5. Their marriage was solemnized on 28.02.2011. They begot two children by name Mohammed Atik Ahmed and M.D. Arshad Ahmed, during their lawful wedlock. Thereafter, as disputes arose between the petitioner and respondent No.5, they are living separately. The two minor children are initially in the custody of the petitioner, who is their mother. As the petitioner is residing in Hyderabad, she has left them in the care and custody of the mother of the petitioner, who is maternal grandmother of the two children in Gooty, Anantapur District of Andhra Pradesh. It is stated that while the maternal grandfather of the minor children was bringing back the two children from the school that the 5th respondent has forcibly taken away the children on the way to their house on 29.03.2022. Therefore, alleging that the two minor children of the petitioner were forcibly whisked away by the 5th respondent, the instant Writ Petition for habeas corpus has been filed seeking direction to produce the children before the Court and to give their custody to the petitioner.

4. After the two children were taken away by the 5th respondent on their way back to their residence from the school, the petitioner has also lodged a report with the police. The said report was registered as case in Crime No.305 of 2022 for the offences punishable under Section 363 r/w 34 IPC by Gooty Police. The said FIR was registered on 24.09.2022.

5. The 5th respondent has sought quash of the said FIR before this Court in Criminal Petition No.8501 of 2022. This Court, by an Order dated 17.04.2023, has quashed the said FIR registered against the respondent No.5 on the ground that as per the Muslim Law, the mother is entitled to custody of male child till the age of 7 years and of the female child till she attains puberty and thereafter the father as a natural guardian is entitled to the custody. Therefore, the Court found that it is not a case of kidnap and as 5th respondent being a father and natural guardian of the said two minor children, is entitled to custody of the said children and when he takes them into his custody in exercise of the said legal right, it is not an offence. The F.I.R. was accordingly quashed by this Court.

6. The learned counsel for the 5th respondent has also placed on record the said order dated 17.04.2023 in W.P. No.8501 of 2023. Even learned counsel for petitioner also did not dispute the fact that the said FIR registered against the 5th respondent was quashed by this Court as per the aforesaid order.

7. However, learned counsel for the petitioner would vehemently contend that even if the 5th respondent, being the father and natural guardian, is legally entitled for the custody of the two minor children, he cannot forcibly take away the said two children, who are admittedly in the custody of their maternal grandparents, and it amounts to taking them away from lawful custody.

8. As per law discussed by this Court in Criminal Petition No.8501 of 2022, the Court held in the order at para nos.8 to 12 as follows:

8. Admittedly, in the case on hand, both the children are minors.

As per the explanation to that Section, a lawful guardian includes a person who is lawfully entrusted with the care or custody of such minor. It naturally includes a natural guardian. Since the pa