Judgment:
R. Basant, J.
1. The petitioners are a husband and his father. The 1st petitioner/husband is aged 38 years. He is employed abroad. The 2nd petitioner is the father of the 1st petitioner. He is aged 64 years. He resides in India.
2. The wife Reshma (4th respondent) and children of the 1st petitioner were living with the 2nd petitioner. The wife and the children were allegedly found missing from 05/03/2010. A complaint was made. The Chokli police registered a crime. The 4th respondent Reshma (wife) and two children - five years and two years, were traced by the police. They were produced before the learned Magistrate. On 13/03/2010, when they were produced before the learned Magistrate, the 4th respondent Reshma stated that she is not under illegal confinement or detention. The allegation of the petitioner was that she was being illegally detained and confined by the other party respondents. In the wake of the statement by Reshma, an adult major married woman with children, the learned Magistrate recorded that she is not under confinement. However, the husband/the 1st petitioner had staked a claim for custody of the children. The learned Magistrate ascertained the wishes of the elder child aged 5 years. The child expressed his desire to go with his father. Accordingly, the elder child was handed over to the 1st petitioner herein. The 4th respondent and the younger child were set at liberty.
3. The petitioners have now come to this Court challenging Ext.P5 order and praying that a writ of habeas corpus may be issued to search for, trace and produce the 4th respondent and the younger child aged 2 years.
4. The learned Magistrate, we note that, had already ascertained that the 4th respondent is not under any illegal confinement or detention. We have no material before us to assume that she is under illegal confinement or detention. Her decision not to go with the petitioners and her decision to go with some others may be improper or incorrect; but at any rate, we cannot assume that her insistence on being away from the petitioner can be reckoned as illegal custody or detention by anyone else.
5. The learned Counsel for the petitioners fervently appeals that the younger child aged 2 years is now evidently under illegal custody. That child has been compelled and forced to be with its mother who has gone away from its father. In these circumstances, the learned Counsel for the petitioners prays that atleast insofar as the younger child aged 2 years is concerned, Ext.P5 order passed by the learned Magistrate must be held to be unjust and incorrect and a writ of habeas corpus ought to be issued to procure the presence of the younger child.
6. We note that the learned Magistrate has applied his mind to this aspect of the matter. The learned Magistrate, prima facie we will see, did not commit any error in not disturbing the custody of the infant. This is not to say that the 1st petitioner is without any relief under law. The 1st petitioner can certainly seek custody of the child by initiating appropriate proceedings before the Family Court. That dispute regarding custody between the father and the mother must certainly be resolved by the Family Court. Needless to say, the petitioner's contention that the 4th respondent is indulging in contumacious conduct and she has hence lost the right to keep custody of the younger child aged 2 years will have to be considered by the Family Court. Appropriate decision on merits, taking all the circumstances into account and particularly considering the welfare of the child, will have to be taken by the Family Court.
7. We mean only to say that we are not persuaded to invoke our extraordinary constitutional jurisdiction under Article 226 of the Constitution of India to issue a writ of habeas corpus to direct the production of the younger child. The petitioner must resort to the ordinary remedy available under law. The learned Counsel for the petitioner contends that that process may take a long time and it is hence that the petitioner has come rushing to this Court. We do not assume that the Family Court shall not take expeditious and prompt action in the application for custody of the child along with application for interim custody to be filed before the Family Court. At any rate, that cannot be a justification ordinarily to invoke our jurisdiction under Article 226 of the Constitution of India. Different would have been the consideration, if the presence of the child could not be secured by the Family Court in spite of the ordinary processes initiated by it. But that is not the situation in the present case.
8. This writ petition is, in these circumstances, dismissed with the above observation.
9. Hand over copy of this judgment to the learned Counsel for the petitioner for production before the Family Court, if he is advised to move the Family Court.