SHUBEG SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present petition has been filed under Article 226 of the Constitution of India seeking a writ in the nature of Habeas Corpus for directing the official respondents to trace out and produce before the Court the minor son of the petitioner namely Shahbaaz Singh who according to the learned counsel for the petitioner is in the illegal custody of respondent No.5 who is the wife of the petitioner and mother of alleged detenue.

(2.) Before discussing the merits of the case, a brief background of the case needs to be mentioned here.

(3.) The petitioner and respondent No.5 married with each other on 2/1/2012 and on 21/11/2014 they were blessed with a baby boy namely Shahbaaz Singh. However, matrimonial dispute arose between the petitioner and respondent No.5 and on 8/12/2018 the petitioner (father)filed a civil suit for injunction for restraining the respondent No.5 (mother) from taking forcible custody of the minor son vide Annexure P-l. Notice in the suit as well as the interlocutory application was also issued by the learned Civil Judge, Patiala. However, no interim order was passed nor any kind of injunction order was passed and rather the matter was also sent to the Mediation Centre but according to the learned counsel for the parties, the mediation had failed. Thereafter, respondent No.5 (mother) approached this Court seeking a writ in the nature of Habeas Corpus in Criminal Writ Petition No. 17 of 2019 on the ground that the sister of the petitioner had illegal custody of the child and therefore, a writ in the nature of Habeas Corpus was sought. However, this Court vide order dtd. 8/1/2019 (Annexure P-3) observed that there is no allegation that the child was snatched away or taken away forcibly and that mother of child is also residing on the first floor separately in the matrimonial house. The father of child who is present petitioner was not made party in that petition and it was observed by this Court that if the mother of child who is respondent No.5 in this petition wanted custody of the minor child, then for that purpose remedy lies before the Guardian Judge by filing a petition, who will determine the dispute regarding the custody of the minor keeping in view the paramount consideration and welfare of the child, as per law and, therefore, the petition was dismissed by holding that it was not maintainable. Thereafter, vide Annexure P-4 the respondent No.5 (mother) filed a petition under Sec. 25 of the Guardian and Wards Act before the learned Principal Family Court, Patiala for the custody of the child and again the matter was sent to the Mediation Centre but the mediation again failed.