JUDGMENT 1. This matter was taken up in pre-lunch session when minor child Purab Singh Rathore was not present in the Court but his father respondent No.2 Dileep Singh Rathore was present, who was directed to produce the minor child at 02.00 PM. 2. Both appellant-mother Shikha Rathore and respondent-father Dileep Singh Rathore are present in Court. Master Purab Singh Rathore is also present in Court. 3. This habeas corpus petition has been filed by Shikha Rathore inter alia with the prayer that respondent No.3, the Commissioner of Police, Jaipur Metropolitan, Jaipur and respondent No.4, SHO, Police Station Bank Park, Jaipur be directed to produce corpus, namely Purab Singh Rathore, aged 13 years before this Court and due and deserving justice may also be imparted to her in terms of the law. 4. As per the averments made in the habeas corpus petition, the petitioner married the respondent No.2 on 22.03.2006 as per Hindu Customs and Rites. A male child was born out of this wedlock, namely Purab Singh Rathore, on 27.05.2007. The petitioner alleged that ever since marriage she was regularly teased and tortured by her husband not only post-marriage but after the birth of child also for insufficient dowry. The husband-respondent No.2 has no love and affection either for the petitioner or for his minor son, who is presently studying in Class-VII as resident student in Nimawat Public School, Fatehpur Shekhawati, District Sikar. A photocopy of the mark-sheet of Class-VI of the child has been annexed with the petition as Annexure-2. 5. It is further alleged that petitioner has suffered a lot at the hands of respondent No.2 and when the torture and suffering became unbearable, the petitioner was constrained to withdraw from the company of the respondent No.2 on 05.07.2019 against her wishes and since then she is residing at her parents house at Jaipur. It is further stated that respondent No.2 was not extending any kind of pecuniary or other support for the study of the minor child and the petitioner anyhow was managing the entire expenses by borrowing money from her parents and also pledging her jewellery with the Muthoot Finance, Jaipur. 6. Mr. Suresh Sahni, learned counsel appearing for the petitioner-wife submits that on the eve of Diwali festival, minor child Purab Singh Rathore was having school holidays from 20.10.2019 to 09.11.2019. 6. Mr. Suresh Sahni, learned counsel appearing for the petitioner-wife submits that on the eve of Diwali festival, minor child Purab Singh Rathore was having school holidays from 20.10.2019 to 09.11.2019. The petitioner by road went to the school to pick up the minor child on 19.10.2019 and brought him to Jaipur. Since then the child was staying with the petitioner at her parental house. It is further submitted that on 22.10.2019 when the petitioner along with her minor son, her elder sister, sister's daughter and her father had gone to pay obeisance at the temple Ghat-Ke-Balaji, situated at Galta Road, Jaipur, respondent No.2 in the absence of petitioner visited their house and enquired from her mother about the petitioner and her minor son. In response her mother replied that petitioner along with her minor son and others have gone to the aforesaid temple, upon which respondent No.2 became very desperate and aggressive saying that he right now wanted the custody of my son and immediately proceeded to Ghat-Ke-Balaji temple. On reaching the temple, respondent No.2 asked for immediate custody of the minor son, to which the petitioner declined. Her father also pleaded that he cannot take law in his hands, after which the respondent No.2 lost his cool and not only manhandled the petitioner but also her minor son and forcibly took away Purab Singh Rathore from the custody of the petitioner and abducted him, who at that time was weeping inconsolably and told respondent No.2 in explicit and unambiguous words that at present he does not wish to part company with the petitioner. Despite this, the respondent No.2 did not pay any heed to the imploring of minor son and others and took him away forcibly. Mr. Suresh Sahni in support of his arguments has relied on judgment of the Supreme Court in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, (1981) 3 SCC 92 . 7. Per contra, Mr. Syed Shahid Hasan, learned counsel for the respondent No.2, has emphatically denied all the allegations levelled by the petitioner. He submits that respondent No.2 being biological father of Master Purab Singh Rathore has every right to custody of his minor son. His custody with the respondent No.2 cannot be said to be illegal. If the petitioner has any grievance, she ought to approach the concerned Civil Court. He submits that respondent No.2 being biological father of Master Purab Singh Rathore has every right to custody of his minor son. His custody with the respondent No.2 cannot be said to be illegal. If the petitioner has any grievance, she ought to approach the concerned Civil Court. Habeas Corpus Petition is liable to be dismissed as not maintainable. 8. On 30.10.2019, while issuing notices to the respondents, this Court required the Registry to give notice of the petition 'Dasti' to Mr. Rajendra Yadav, learned AAG-cum-Govt. Advocate for service upon respondent No.2 Mr. Dileep Singh Rathore through SHO, Police Station, Bani Park, Jaipur, with direction to produce the detenue before the Presiding Officer, Family Court No.1, Jaipur on 31.10.2019 at 12.00 noon, who was asked to assign the matter to any Child Counsellor attached to that Family Court to ascertain the wishes of the minor child so as to determine his welfare and to send the report of the Child Counsellor to this Court on 01.11.2019 by 10.30 AM. 9. The report of the Child Counsellor has been placed on record, in which the Child Counsellor has stated that she has talked to the child in private and tried to ascertain his wishes. She made the child comfortable after spending some time with him and tried to explain to him the purpose of this counselling. According to what has been recorded by the Child Counsellor in the report, the minor child Purab Singh Rathore stated that when his father and mother were staying together, they used to quarrel with each other and for this reason his mother left the house of his father and has shifted to his Nani's house. His father most of the time used to watch cricket match on the television and then would go out of the house and not return back till late night. His father usually quarreled with his mother. He has the bad habit of gambling in cricket. The child further stated that he loved to live with his mother and wants to live with her but at the same time whenever he would return home during vacations, he would also like to meet his father. Presently he is staying in the hostel. 10. We have also called the minor child Purab Singh Rathore on the Dais and talked with him briefly. Presently he is staying in the hostel. 10. We have also called the minor child Purab Singh Rathore on the Dais and talked with him briefly. He has expressed same desire which he told to the Child Counsellor. 11. Having regard to the facts and circumstances of the case, but without commenting on the dispute between the petitioner-wife and respondent No.2-husband, we are inclined to hold that even a father cannot be forcibly allowed to take the custody of the minor son from his mother without recourse to remedy available in law. A biological father can certainly claim custody of his son but only by recourse to due proceedings of law. No one can be permitted to take law in his hands. It is precisely for this reason that we have entertained this petition. For the course which we have adopted in deciding this petition, we are fortified by the view taken by the Supreme Court in Dr. (Mrs.) Veena Kapoor (supra). We, therefore, direct that custody of Master Purab Singh Rathore be handed over to his mother Shikha Rathore. It is made clear that this order has been passed in the peculiar facts of this case, cognizant of the fact that respondent No.2, father of the minor child also wants the custody of the child but we are not finally deciding the rights of the parties as to the custody of the child including the visitation rights, for which the parties would be free to litigate before the competent Court. 12. We make it clear that nothing stated in this order shall prejudice the rights of either of the parties, however at the same time we wish to observe that respondent No.2 shall refrain from taking the law in his hands for procuring custody of the child forcibly ever again. He however can avail his remedy for custody of the child before competent Court, which would decide the same, uninfluenced by anything observed in this order, considering only the welfare of the child as the paramount consideration, in accordance with law. 13. With the aforesaid observations, the habeas corpus petition stands disposed of.