O R D E R

[Order of the Court was made by G.ILANGOVAN, J.]

This Habeas Corpus Petition has been filed directing the respondents 1 to 3 to produce the petitioner's daughters, namely, Mariam Farha, aged about 7 years and Fathima Liba, aged about 5 years from the illegal custody of the fourth respondent and set them at liberty.

2. The petitioner is the wife of the fourth respondent. The marriage between them was solemnized on 06.05.2004 at Muthiah Mandram Madurai.

During the lawful wedlock, they are blessed with two children, the detenues herein. The petitioner would claim that she was mentally and physically harassed by the fourth respondent and that was a reason for her to suffer from hypertension, so, she could not get conceived immediately. Hence, the first child was born on 02.02.2013 and she delivered the second child on 01.05.2015. 3. It appears that the petitioner along with her husband and children had been in Dubai, where the fourth respondent is employed and they came to India on 17.11.2020. It is the grievance of the petitioner that when she took the detenues to Madurai to see her parents, the fourth respondent objected the same and he had forcibly taken them to Periyakulam, which is the native place of the fourth respondent. During their second visit also, the fourth respondent had taken both the detenues on 10.01.2021 without the consent of the petitioner and he intends to take them to Dubai on 18.01.2021. She would claim that the mother alone can take care of the girl children physically, socially, mentally and psychologically. If the two children are in the custody of the fourth respondent, they will be spoiled.

4. When the matter cameup for admission, Mr.Bhardhan, learned counsel for the Petitioner submitted that even in cases, where the custody of children are involved, the jurisdiction of this court for habeas corpus relief is not barred in view of the judgment of the Honble Supreme court Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others reported in 2020 (3) CTC 256.

He would rely upon para 19 of the judgment which reads under, “ Habeas Corpus proceedings is not to justify or examine the legality of the custody. Habeas Corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas Corpus is a prerogative Writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the Writ is qualified only in cases where the detention of a minor by a person, who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”

5. By relying upon this judgment, he contended that the minors must be under the custody of the petitioner since the girl child will attain puberty shortly, during which time, her care and attention is required. He further contended that without her consent, the fourth respondent is about to take the childrens to Dubai and if he succeded, then, it may be very difficult for her to get back the coustody of the children.

6. Considering the urgency, we granted an interim order on 18.01.2021 and directed the third respondent to produce the detenues on 01.02.2021.

7. However, the matter was taken up for hearing on 20.01.2021 at the instance of R4. On that date, the petitioner, the fourth respondent and the detenues namely, children appeared before us through video conference. It is the submission of Mr.Ajmal Khan, learned Senior Counsel appearing for the fourth respondent that the present habeas corpus petition itself is not maintainable for t