Faizanuddin, J.
1. This is a petition under Article 226 of the Constitution for issuance of a writ in the nature of Habeas Corpus against the respondent No. 1 and 2 herein directing them to produce the female child Ku. Chandra Prabha Saini, respondent No. 3 herein, before the Court, and restore her custody to the petitioner who is the mother of the said child.
2. The facts of this case lie in a very narrow compass. Admittedly, the petitioner was wedded to the respondent No. 1 on 26-5-1983, according to the Hindu rites and out of their wedlock the only female child, namely, Ku. Chandra Prabha Saini, the respondent No. 3, herein, was born on 7th August. 1985. The petitioner's husband respondent No. 1 is employed as a Instructor in I.T.I. Sehore. The respondent No. 2 Raghuvir Prasad Saini is the father of respondent No. 1. The petitioner's allegations are that the behaviour of the respondents towards her was cruel and she was subjected to physical violence by them which forced her to leave the house of her husband and come down to live under the roof of her parents at Jabalpur. It has been alleged that while leaving the house of her husband, she was not allowed by the respondents to take her child Ku. Chandra Prabha, respondent No. 3 with her. The petitioner's father Asha Ram approached the respondents sometimes in the month of December, to fetch the said child but the respondents declined to give him the custody of the child and hence this petition. It has been further alleged that the minor child is in the illegal custody of the respondent No. 2, the father of respondent No. 1, who is an oldman of 65 years and, therefore, it cannot be said that the child is being properly looked after. It has also been asserted by the petitioner that the welfare, protection and interest of the child demands that she should be in the proper care of the mother as one can have a better care of the minor child than the mother and, therefore, she is entitled for the custody of her child who at the time of petition was aged about 2 and half years and now 3 years old.
3. The respondents No. 1 and 2 have countered the aforesaid allegations. They have, in their common return, inter alia, denied the allegation of rough treatment. They have come forward with the statement that the petitioner is the only child of her parents and she did not relish living with her husband; but had the fancy to go and live with her parents. Receiving encouragement from her parents the petitioner herself left the roof of her husband and inspite of the registence by the respondents she went away to reside with her parents at Jabalpur, little realising that her own daughter, the child in question, was one year old needed the breast feeding, care and protection of her natural mother, However, the petitioner No. 1 and her mother maintained and brought up the child who lives with her father, the petitioner No. 1 and her grand mother happily with all possible comforts. The respondents have asserted in their return that the petitioner is educated only upto Class VIII and is incapable of earning anything but has to depend on her old parents who are themselves not very affluent persons. On the other hand the respondent No. 1 father of the child is & Instructor in I.T.I. at Sehore and he is in a far better position to maintain, educate and bring up the child in much better way than the petitioner or her parents and thus the interest of the child, which is paramount consideration, would be better served if she is allowed to remain in the custody of her father, the respondent No. 1.
4. Before we enter upon the case to decide this petition, it may be pointed out that none of the parties have made any attack on the moral character of each other and their differences seem to be confined only to petty domestic squabbles and lack of mutual adjustment. Therefore, though this petition is not one under the Hindu Marriage Act or the Hindu Minority and Guardianship Act, yet the petitioner and respondent No. 1 being young couple, on 23-6-1988 when the petition came up for final hearing in the presence of the petitioner, her father and respondent No. 1 who was present with the child, we with the aid and assistance of their respective counsel, made concerted effort and endeavour to bring about reconciliation and amicable settlement in the best interest of the couple and their small child, but it proved a futile exercise, as the petitioner in any case was not willing to go and live with her husband, the respondent No. 1. The petition was, therefore, finally heard.
5. Habeas Corpus subjiciendum is a latin maxim which means you have the body to submit or answer which is commonly known as Habeas Corpus. The writ of Habeas Corpus is the most celebrated, famous and ancient-English Writ which has been for many past centuries used as an effective means to protect the personal liberty. Formerly before the Constitution of India, the power for issuance of a writ of Habeas Corpus was exercised under the statutory right as contained in Clauses (a) and (b) of Section 491 of the old Code of Criminal Procedure 1898 which now stands repealed by the New Code of Criminal Procedure, 1973, in which Section 491 of the old Code has been altogether omitted because Article 226(1) of the Constitution of India has secured that right and has conferred wide and comprehensive powers on the High Courts to issue writs in the nature of Habeas Corpus also besides other writs. It is addressed to the person or authority who is alleged to have detained any individual or body of individual illegally, to produce the body of that person or persons alleged to be in illegal detention in order to investigate and examine summarily the validity of the legality of his detention and if the High Court is satisfied that the detention is illegal or improper, he is instantly set at liberty. The writ of Habeas Corpus is purely remedial and a procedural writ and does not carry with it any punitive or deterrent force. The whole object of the proceedings for Habeas Corpus is to provide an expeditious remedy to a person who has been deprived of his personal liberty against the procedure established by law.
6. There can be no dispute that the provisions of Clause (1) of Article 226 of the Constitution may be resorted to and invoked in securing the custody of a minor child or wife also by one who stands in loco parentis for the reason that the unlawful detention of the minor from the person who is legally entitled to the custody, is for the purpose of the issue of a writ, regarded as equivalent to unlawful imprisonment of the minor. Such a remedy would be available irrespective of the fact that alternative remedy under the Guardians and Wards Act is also available, with a view to provide immediate release in suitable cases. But it has to be remembered that this extra-ordinary power should be exercised only in exceptional circumstances and in case of urgency, such as, where a father/ legal or natural guardian is suddenly and illegally deprived of the custody of his child and there is danger to his life as in such circumstances the safety and welfare of the child is always the paramount consideration. Where the paramount interest of the minor does not demand any action, the Court will be slow in issuing the writ of Habeas Corpus, for the reason that the jurisdiction under Article 226 of the Constitution should not be resorted to decide the dispute as to who should be the guardian of a child because the primary consideration is not the rights of this or that parent but the interest and welfare of the child.
7. It would be relevant to refer some of the decisions also in this regard which throw light on the subject in question. In M. Basavalingam v. M. Swarajya Lakshmi, AIR 1957 AP 704, a Division Bench of Andhra Pradesh High Court observed that it is only in exceptional cases that the right of parties to the custody of the children is determined in a petition under either Section 491 of the old Code of Criminal Procedure or under Article 226 of the Constitution and ordinarily they should be adjudicated upon in an application under the Guardians and Wards Act. In Dushyat Somal v. Sushma Somal, AIR 1981 SC 1026, it was observed that there can be no question that a writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child and that clear grounds for the same must be made out. Leaving aside those cases where a parent who with impunity snatches away a child from the lawful custody of another parent, to whom the Court has given such custody. Again in Veena Kapoor v. Varinder Kumar Kapoor, AIR 1982 SC 792, it has been held that it is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. A Division Bench of this Court in Bhagwati Bai v. Yadav Krishna, AIR 1969 MP 23, declined to issue the writ and took the view that the writ of Habeas Corpus is an extraordinary remedy which is issued where ordinary remedy provided by the law is either not available or is ineffective or inadequate. It has been further held that in every such case, she best interest of the child is the primary consideration; the right of the guardian is secondary and it will not be enforced by issuance of a writ when it is in conflict with the former consideration. The underlying principle is that the guardian's claim to the custody of the child is not a right in the nature of property but it is a right in the nature of trust for the benefit of the minor. Where there is imminent danger to the health or safety or morals of the minor, an interim order for production of the minor becomes necessary. In some what similar circumstances, a Division Bench of this Court in Manai v. Gobi Gadavi and Ors., M.P. No. 486 of 1976 decided on 19-10-1976 refused to issue writ of Habeas Corpus against husband in respect of custody of a minor girl at the instance of her mother.
8. Having discussed the ambit, scope and object of Article 226(1) of the Constitution in relation to the issuance of a writ a Habeas Corpus for custody of a minor and the law laid down by their Lordships of the Supreme Court and the High Courts, we shall now proceed to apply the same to the case in hand.
9. Admittedly, the female child-respondent No. 3, herein, was born on 7th August, 1985 at the time when the petitioner was living at the place of her husband, respondent No. 1. According to the petitioner herself she abondoned the house of her husband but has not mentioned any date, month or year when she left the house. The respondents have stated in the return supported with affidavit that she had gone away to her parents house when the child was hardly an year old and in the rejoinder affidavit, this fact has not been controverted on behalf of the petitioner. It has, therefore, to be accepted that she left for her parents house when the child was about an year old, that is in or about July/ August 1986. There is no material before us to show that the petitioner was cruelly treated by the respondents. Then according to the petitioner herself her father approached the respondents in December to fetch the child but respondents refused to deliver the custody. Thereafter this petition for Habeas Corpus was filed on 11-4-1988 although the petitioner resides at Jabalpur where the High Court seat is also located. These facts clearly indicated that the petitioner had no affection love and anxiety towards her child at the breast-feeding stage, when the child needed her motherly affection and affinity most. The petitioner left her husband's house and the child when the child was hardly one year old that is in or about July/August 1986 and then she waited till December of that year to send her father to fetch the child. If in fact she had the least care and affection towards the child or interest in her well being, she would not have sat idle till December, 1986 and then to file this Habeas Corpus petition as late as April, 1988 when the child had already passed the stage of breast feeding and had grown. These facts do not in any way make out a case of wrongful detention of child by her own father, respondent No. 1.
10. Apart from the above facts, the child aged about 3 years was produced in the Court by the respondent No. 1 on the date of hearing and she appeared to be quite happy with her father. Although, the petitioner being her mother was also sitting in the same line of rear benches meant for the suitors is the Court-room, but we noticed that the petitioner and the child appeared to be a total stranger, to each other.
11. The facts stated above clearly speak for themselves and show that the petitioner was not suddenly or forcibly deprived of the custody of miner child respondent No. 3. There is also neither any allegation nor any material to show that there is any imminent danger to the life and safety of the minor on her health or welfare is, in any manner, at a stake in the custody of her father, respondent No. 1. There is also no material to indicate that the interest of the child would suffer if she is allowed to remain in the custody of respondent No. 1. After all the respondents No. 1 is the father of the minor child and some how the child has crossed that crucial period of breast-feeding and the respondent No. 1 has been able to maintain and look after her reasonably in quite a fair way. To us, the dispute between the parties virtually appears about the guardianship and custody of the child Chandra Prabha Saini for which the petitioner ought to have resorted to the ordinary remedy under the appropriate law and not this extraordinary remedy which is available only in exceptional circumstances.
12. From the foregoing discussion it is now manifestly clear that there do not exist any exceptional circumstances or any urgency for exercise of the extra power conferred under Article 226(1) of the Constitution, in order to provide immediate release of the child from the custody of her father. Thus no case is made out for issuance of a writ of Habeas Corpus directing the respondents to band over the custody of child to the petitioner. However, the petitioner would be free to move an application before the appropriate Civil Court under the Guardians and Wards Act or under the Hindu Minority and Guardianship Act for custody of child and nothing stated herein shall, in any manner, affect the said decision between the parties.
13. For the reasons stated hereinabove, the petition fails and is hereby accordingly dismissed.