JUDGMENT : This Habeas Corpus Petition under Article 226 of the Constitution of India is filed by the petitioner seeking following reliefs : “i. Issue a Habeas Corpus for production of the minor son namely Master Vihaan; ii. Pass appropriate directions granting proper and continuous access of the son Master Vihan to the petitioner, and his safe passage to Australia; iii. Pass any such other/further orders or directions as this Hon’ble Court may deem fit in the interest of justice.” 2. Brief facts of the case are that the petitioner and the respondent No.4 got married on 25.02.2012 and started residing in Australia and from their wedlock, a male child was born on 16.02.2016. It appears that on account of some dispute between the petitioner and the respondent No.4, the respondent No.4 left Australia and is residing with her parents in Jodhpur since 25.07.2018. While leaving Australia, she took the minor child with her and since then, the minor is residing with her mother. 3. In between, an FIR was registered at the instance of the respondent No.4 and after arriving at a settlement, a mutual divorce petition under Section 13(B) of the Hindu Marriage Act was filed on behalf of the petitioner and the respondent No.4, wherein the Family Court No.1, Jodhpur granted a decree of divorce vide judgment 17.02.2020. 4. It is noticed that in the said judgment and decree dated 17.02.2020, it is specifically mentioned that custody of the minor child shall remain with the respondent No.4. After issuance of decree of divorce, the criminal case filed against the petitioner at the instance of the respondent No.4, was also closed and a negative final report was filed by the Police in the matter, which was duly accepted by the concerned criminal court. 5. The petitioner, thereafter, filed an application before the Family Court No.1, Jodhpur with a prayer for reviewing the judgment and decree dated 17.02.2020 awarded by it. The said review application came to be dismissed on 23.09.2021 and thereafter the petitioner preferred DB Civil Misc. Appeal No.1047/2021 before this Court challenging the judgment and decree dated 17.02.2020. In the said misc. appeal, this Court has passed the order for visitation through video call in favour of the petitioner from time to time. Ultimately, the said misc. The said review application came to be dismissed on 23.09.2021 and thereafter the petitioner preferred DB Civil Misc. Appeal No.1047/2021 before this Court challenging the judgment and decree dated 17.02.2020. In the said misc. appeal, this Court has passed the order for visitation through video call in favour of the petitioner from time to time. Ultimately, the said misc. appeal came to be disposed of by this Court by following judgment dated 12.07.2023 :- “The only grievance which has been highlighted by the learned counsel for the appellant is the mentioning with regard to the custody of the minor child Vihan in para 5 of the impugned order dated 17.02.2020. It has been asserted that the custody of the child may be left open to be decided by the Court where the proceedings are pending i.e. Family Court No.2, Jodhpur. Learned counsel for the respondent states that the respondent has no objection to the prayer as has been made by learned counsel for the appellant. In light of the above, any observation which has been made by the Family Court No.1, Jodhpur in the order dated 17.02.2020 with regard to the custody of the minor child Vihan shall have no bearing on the litigation which is pending between the parties. The present appeal stands disposed of.” 6. From perusal of the above quoted judgment, it appears that the petitioner has already approached the Family Court No.2, Jodhpur seeking custody of the minor child and the same is pending consideration. It is also to be noticed that in the said proceedings, the Family Court No.2, Jodhpur has passed an order dated 20.09.2022, wherein visitation rights have been given to the petitioner. 7. Aggrieved with the order dated 20.09.2022, the petitioner has preferred SB Civil Writ Petition No.16655/2022 before this Court, wherein notices have been issued to the respondent No.4 and the same is pending. 8. After passing of the order dated 12.07.2023 in DB Civil Misc. Appeal No.1047/2021, the petitioner has preferred the instant Habeas corpus Petition alleging therein that his minor son is in illegal detention of the respondent No.4. 9. We have questioned about maintainability of this Habeas Corpus Petition in view of the fact that the custody proceedings initiated at the instance of the petitioner are pending consideration before the Family Court No.2, Jodhpur. 10. 9. We have questioned about maintainability of this Habeas Corpus Petition in view of the fact that the custody proceedings initiated at the instance of the petitioner are pending consideration before the Family Court No.2, Jodhpur. 10. Learned counsel for the petitioner while placing reliance on the decision of the Hon’ble Supreme Court rendered in Yashita Sahu Vs. State of Rajasthan referred in (2020) 3 SCC 67 has argued that writ of habeas corpus is maintainable in the matter of custody of a minor child. 11. Learned counsel appearing for the respondent No.4 has vehemently opposed this Habeas Corpus Petition and argued that this writ of habeas corpus is not maintainable in view of the fact that the custody proceedings initiated at the instance of the petitioner are pending consideration before the Family Court No.2, Jodhpur. 12. Learned counsel has submitted that in the custody proceedings initiated at the instance of the petitioner, the Family Court No.2, Jodhpur has already passed an order dated 20.09.2022, wherein visitation rights have been given to the petitioner and pursuant to that, he met with his minor son twice. Learned counsel has submitted that when the petitioner has already challenged the order dated 20.09.2022 passed by the Family Court No.2, Jodhpur by way of filing writ petition, the instant Habeas Corpus Petition filed by the petitioner is nothing but an abuse of the process of the Court. 13. Learned counsel has submitted that the facts of Yashita Sahu’s case (supra) are quite distinguishable and looking to the facts and circumstances of the present case, this Habeas Corpus Petition is not at all maintainable. Learned counsel has placed reliance on the decision rendered by the Hon’ble Supreme Court in Jose Antonio Zalba Diez Del Corral Alias Jose Vs. State of West Bengal & Ors. reported in 2021 SCC Online SC 3434 Writ Petition(s) (Criminal) No(s).318/2020. 14. Learned AAG has submitted that in the facts and circumstances of the case, particularly when the custody proceedings are pending consideration before the competent court, this Habeas Corpus Petition is not maintainable. 15. Heard learned counsel for the parties and perused the material available on record. 16. reported in 2021 SCC Online SC 3434 Writ Petition(s) (Criminal) No(s).318/2020. 14. Learned AAG has submitted that in the facts and circumstances of the case, particularly when the custody proceedings are pending consideration before the competent court, this Habeas Corpus Petition is not maintainable. 15. Heard learned counsel for the parties and perused the material available on record. 16. It is not in dispute that in the consent decree of divorce, a condition was mentioned that custody of the minor child would remain with the respondent No.4, however, the petitioner, while contending that his consent was fraudulently obtained has approached this Court by way of filing DB Civil Misc. Appeal No.1047/2021, which came to be disposed of by this Court on 12.07.2023 while specifically observing that the question regarding custody of the minor child will be decided by the Family Court No.2 Jodhpur and that the said observations were also made as per the submissions of the petitioner only. 17. True it is, that a Habeas Corpus Petition is maintainable in the custody of matter of a minor, but in the facts and circumstances of the present case, it is clear that this Habeas Corpus Petition is not maintainable. 18. The Hon’ble Supreme Court, while distinguishing the case of Yashita Sahu (supra) has observed as under:- “10. Having heard the petitioner as well as the learned counsel for the parties and on perusal of the record, before going into the merits of the claim of the petitioner, the preliminary question to be decided by this Court would be with regard to the maintainability of this petition. 11. It cannot be disputed that both the parents may have a right for custody of their children but the said question of custody is to be considered and decided after evidence is adduced by the parties, and after following the due procedure, which would be under the provisions of the Guardians and Wards Act; and the petitioner has already filed a petition under the said Act, which matter is pending consideration before the Trial Court in Kolkata. 12. The decision in Yashita Sahu (supra) is distinguishable on facts. 12. The decision in Yashita Sahu (supra) is distinguishable on facts. The said case related to a matter in which both the parents, along with the children, were residing in United States and since there were disputes between the husband and wife, and the wife had taken away the children and started living separately, the father filed a petition for custody of the children before the court in the United States, which directed the wife to produce the children and instead the wife took the children from United States to India. It was in such circumstances that in a Habeas Corpus Petition before the Rajasthan High Court, the High Court directed the wife to return to the United States along with the minor daughter within six weeks to enable the territorial jurisdictional court in United States to pass further orders in the proceedings already pending there. It was in the aforesaid facts that the writ petition for Habeas Corpus was held to be maintainable. This Court in the case of Tejaswini Gaud (supra) has categorically laid down the law with regard to the maintainability of Habeas Corpus Petition in Paragraphs No. 19 & 20, which are extracted below: “19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.” 13. In the present case, the admitted facts being that the mother has the custody of two minor children, for which the petitioner (father) has already filed a petition under Section 12 of the Act, which is pending consideration; and the custody of the children with the mother, who is a natural guardian, cannot be said to be illegal and, thus, the petition for habeas corpus would not be maintainable and that too directly under Article 32 of the Constitution of India. While saying so, we are not going into the question whether the maintenance amount directed by the Trial Court in the proceedings under the Protection of Women from Domestic Violence Act, 2005 has been paid or not. The statutory remedy available under the Guardians and Wards Act is the appropriate remedy, which has already been availed by the petitioner. There are no extra ordinary or exceptional circumstances in the present case requiring this Court to exercise its jurisdiction under Article 32 of the Constitution of India. The remedy already availed by the petitioner is an appropriate and effective remedy, where all the questions raised herein regarding the welfare and wellbeing of the children can be considered in accordance with law, after appreciation of the evidence, which may be led by the parties.” 19. The remedy already availed by the petitioner is an appropriate and effective remedy, where all the questions raised herein regarding the welfare and wellbeing of the children can be considered in accordance with law, after appreciation of the evidence, which may be led by the parties.” 19. From the facts noted above, we also find that there are no extraordinary or exceptional circumstances in the present case requiring this Court to exercise its jurisdiction under Article 226 of the Constitution of India. As noted earlier the petitioner has already availed remedy for custody of minor son which is pending consideration and wherein the Family Court No.2, Jodhpur has already given visitation rights to the petitioner. The petitioner has also challenged the said order of the Family Court No.2, Jodhpur by way of writ petition which is pending consideration. The facts of the present case are quite distinguishable from the facts of the case of Yashita Sahu (supra). The facts of the present case are near to the case of Jose Antonio Zalba Diez Del Corral Alias Jose Antonio Zalba (supra). At present the minor is in custody of respondent No.4 who is also a natural guardian and in such circumstances, we have no hesitation in holding that this Habeas Corpus Petition is not maintainable. 20. Taking into consideration the fact that in the custody proceedings initiated at the instance of the petitioner, the Family Court No.2, Jodhpur has already given visitation rights to the petitioner pursuant to which he met his minor son twice and also taking into consideration the fact that soon after disposal of DB Civil Misc. Appeal No.1047/2021, the petitioner has filed this Habeas Corpus Petition, we are of the view that the instant petition is filed by the petitioner only with an intention to harass the respondent No.4. Such an attempt on behalf of the petitioner is nothing but a classic case of the abuse of the process of the Court. 21. Hence, this Habeas Corpus Petition is dismissed as not maintainable with a cost of Rs.25,000/-upon the petitioner, which shall be deposited by him within a period of one month from today in Family Court No.2, Jodhpur, where the custody proceedings initiated at his instance are pending consideration. 22. The amount of cost shall be disbursed to the respondent No.4 on moving an appropriate application in this regard.