ORDER

(per the Hon’ble Sri Justice P. Sam Koshy)

Heard Mr. Nitish Karoor, learned counsel, appearing on behalf of Mr. K.Mohan, learned counsel for the petitioner and Mr. Swaroop Oorilla, learned Special Government Pleader appearing for the respondents.

2. The present is a petition filed for issuance of Writ of Habeas Corpus for the production of four (04) year old minor daughter of the petitioner named Yuvika Choudary.

3. The brief facts of the case are that the petitioner is the husband of respondent No.5 and the alleged detenue child is the minor daughter born to the petitioner and respondent No.5. The marriage between the petitioner and respondent No.5 took place on 19.05.2019 and the alleged detenue was born from the said marriage on 16.11.2020. After sometime, the relations between the petitioner and respondent No.5 got strained. Because of the strained relationship, the petitioner and respondent No.5 started living separately. The alleged detenue was with the petitioner till 08.12.2024. It is alleged that on 08.12.2024, the respondent No.5 accompanied by respondent No.3 and a few more personnel went to the petitioner’s house and in his absence took away the alleged detenue child from his house despite protest being raised by other occupants of the petitioner’s house.

4. It was in this context that this Habeas Corpus petition has been filed.

5. From a plain reading of the Writ Petition, it appears that the petitioner and respondent No.5 have been staying separately since February, 2023, and since then the alleged detenue was with the petitioner. It is also revealed from the proceedings that on 04.02.2024, there was an agreement entered into between the petitioner and respondent No.5 in respect of the relationship and they had decided to part ways amicably with mutual consent. It was also agreed that the alleged detenue child shall be left with the petitioner.

Accordingly, the child’s custody was given to the petitioner.

6. Subsequently, on 08.12.2024, the respondent No.5 is said to have went to the house of the petitioner when the petitioner was not at home and without the consent of the petitioner or anybody else had forcefully taken the minor child into her custody; giving rise to filing of this Habeas Corpus petition. The child was taken by the respondent No.5 on 08.12.2024 and the instant Habeas Corpus petition has been filed on 23.12.2024.

7. The contention of the learned counsel for the petitioner was that since the respondent No.5 had taken the minor child without the consent of the petitioner, it amounts to respondent No.5 having illegally taken the child from the custody of the petitioner and had put the minor child in respondent No.5’s confinement amounting to illegal detention.

8. On the other hand, the learned Special Government Pleader appearing for the respondents submits that the minor is a daughter and she is presently in the custody of the biological mother and the law is also by now well settled wherein it is stated that the minor children less than seven (7) years of age must be in care and custody of the biological mother and it is only thereafter that it has to be considered whether the custody has to be given to the father or the mother. But for the initial period of childhood, it is the mother alone who is the best person to know the needs and requirements of the child and therefore the child being in company of the biological mother cannot be said to be in any manner in illegal confinement or illegal detention.

9. It was further argued by the learned Special Government Pleader that if at all, if the petitioner intends to claim the custody of the child, the petitioner has an statutory remedy available to him by moving a petition before the concerned Court under the Guardians and Wardens Act, 1890. Therefore, the present Writ Petition for the said reasons is not maintainable and prayed for rejection of the same.

10. Having heard the contentions put forth on either side and on perusal of records, some of the ad