1. Heard learned counsel for the petitioner, learned Additional Government Advocate and learned counsel appearing on behalf of respondents 4 to 6.
2. Present petition under Article 226 of the Constitution of India has been filed for issuance of a writ in the nature of habeas corpus directing respondents 4, 5 and 6 to produce the detenue petitioner Pranjal Sharma before this Court and permit her to go with her mother Smt. Dipika Sharma.
3. This Court after examining the material on record passed an order on 14.10.2019 in pursuance to order dated 25.9.2019, in the following terms (relevant portion) :
".........................
However, vide order dated 25.9.2019 in the presence of opposite party no.4 and 5 providing a right to the mother (the petitioner) to visit the house of opposite party nos.4 and 5 to meet her child, baby Pranjal Sharma. It is reported by the parties themselves that visit was done though very cautiously in the presence of local police officers on behest of opposite party nos.4 to 6.
List on 01.11.2019 for hearing.
Meanwhile, the mother, petitioner under the same visiting right as given in order dated 25.9.2019 will visit to meet her child, baby Pranjal Sharma. The opposite party nos.4 and 5 will facilitate such visiting at their house on every intervening Sunday at 4:00 p.m. to 6:00 p.m. before the next date of listing."
4. Learned counsel for the petitioner submitted that the mother is the natural guardian. Therefore, the custody of the child with the father is illegal.
It has also been submitted that the mother of the child is a working lady and since morning to evening, she lives out of her house.
5. On a specific query as to who looks after the affairs of the house during the period while she (Smt. Dipika Sharma, mother) remains in the office, it has been submitted that her parents also reside in the same house along with her.
6. On the other hand, learned counsel appearing on behalf of opposite parties 4 to 6 submits that the child Pranjal Sharma was seriously ill. The mother of the child was not cooperating in treatment. She was busy in discharging her official duties. The father of the child who is a homeopathic doctor somehow managed the treatment of the baby and now she is well.
7. From the above quoted order, it is evident that after examining all the material(s) on record, this court has given liberty to the mother to visit the place where the baby is residing, on every Sunday from 4.00 to 6.00p.m..
8. Learned counsel for the petitioner submitted that the mother is the natural guardian of the baby till she attains the age of majority.
9. I have considered the submission(s) advanced by the parties' counsel and perused the material on record. I have also perused the order(s) passed by this Court earlier.
10. A perusal of the orders dated 13.9.2019 and 25.9.2019 passed by this Court shows that this Court vide a detailed order after considering the material placed on record and the statement of the parties who appeared on 25.9.2019 inter alia allowed the visiting right of the mother at the place where the baby has been residing along with her father.
11. I find that it is a case where the petitioner's custody is sought by the mother from the custody of her father.
12. Certainly, under Article 226 of the Constitution of India, the High Court is empowered to issue a writ in the nature of habeas corpus. However, to maintain/ file a habeas corpus petition, it is a condition precedent that there is a prima facie case of illegal detention or at least a suspicion in respect of such illegal detention. A writ of habeas corpus is available in all cases of wrongful deprivation of personal liberty. It may be issued against any person or authority who has illegally detained, arrested or confined the detenu or prisoner.
13. On a query of the Court, learned counsel for the petitioner could not place any material to establish illegal detention of baby Pranjal Sharma against her wishes.
14. In the case in hand, from the material available on record, it prima facie does not appear that the petitioner has been detained by private respondents illegally. No material of any sort has been placed before this Court so as to establish that the petitioner has been illegally detained illegally. By order(s) passed by this Court, the mother Smt. Dipika Sharma has been given visiting right, to meet her daughter at the residence of the father. The petitioner has made out no case for holding that the respondents were illegally or improperly detaining the petitioner and that the petition does not mention any fact to prove that the custody of the child was illegal.
14. In case the mother wants custody of the child, there is a full fledged procedure prescribed under the Guardian & Wards Act before the Court below.
15. For the reasons given above, no cause of action survives to keep pending the writ petition before this Court.
16. Accordingly, the writ petition is finally disposed of with liberty to the petitioner to avail appropriate remedy available under law, for the custody of the child. The visiting right of the mother Smt. Dipika Sharma which was given by this Court vide order dated 25.9.2019 shall continue to operate till the decision in the petition, if any filed in the Court of competent jurisdiction.
Order Date :- 27.11.2019 kkb/