SANJAY RAVISHANKAR BAJPAI Vs. BALKRISHNA PANDEY

JUDGEMENT

(1.) RULE made returnable forthwith. Heard the parties through their learned Counsel.

(2.) THE petitioner-father of a minor girl Kum. Swati aged 5 years, has filed this petition for the issuance of writ of habeaus corpus under Article 226 of the Constitution of India seeking direction to the Respondent nos. 1 and 2 for handing over the custody of minor daughter Swati to the present petitioner who is a natural guardian.

(3.) THE learned Counsel for the petitioner further submitted that though there is an efficacious remedy for filing the petition for custody under Guardian and Wards Act, still this Court has jurisdiction to issue writ of habeaus corpus. He, therefore, relied upon two authorities, (i) In the case of S. Rama Iyer Vs. K. V. Nataraja Iyer, reported in AIR (35) 1948, Madras, page 294 (C. N. 148 ). In this case, the custody of a boy aged about 13 years, on an application under Section 491 of the Criminal Procedure Code (Old ) was given to the natural guardian father, but after taking evidence of the parties. THE facts of this case are different from the instant case. THE reliance is also placed upon the decision in the case of, Gohar Begum Vs. Suggi alias Nazma Begum and others, reported in AIR 1960, SC page 93. In para 10 of the said decision, the Supreme Court has observed as under : " We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under S. 491 of the Code. THE fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under S. 491. That is well established as will appear from the cases hereinafter cited. "