ORDER : UMESH A. TRIVEDI, J. 1. This petition is filed by the petitioner-mother of minor son “Zain” praying for writ of habeas corpus be issued against respondent no.2 to produce the corpus and handover the custody to the petitioner. 2. The facts as narrated in this petition is that the petitioner and respondent no.2 got married on 05.06.2015 and out of the wedlock son “Zain” born on 28.04.2019 3. However, due to the some dispute between the parties, petitioner herein prayed for “Khula” i.e. divorce from her husband, which came to be agreed by respondent no.2-husband and the “Khula” came to be executed between them duly signed in presence of witnesses as also by respondent no.2 herein stating therein that he released wife Roshni from marriage by her “Khula” in exchange for her dower (Mahr) and Idda expenses. Since there is no dispute about the execution thereof and the divorce pursuant thereto, nothing further requires to be delve deep into it. 4. However, as claimed by the petitioner, respondent no.2 snatched away the custody of son “Zain” on 21.04.2024 suddenly after 5 years of separation/divorce, present petition came to be filed before the Court for a writ of habeas corpus to restore the custody. On 09.07.2024, Mr.Nadeem B. Mansuri, learned advocate appeared for respondent no.2, without notice being issued, therefore Registry was directed to accept his appearance. He sought time to file affidavit in response to the petition. Thereafter, he filed the affidavit-in-reply to the petition. Pleadings in the form of reply, rejoinder, sur-rejoinder etc. were completed. Since first reading of pleadings compel us to meet and interact with the child, we had done that. The age of child being 5 years vide order dated 01.08.2024, we directed the custody of child “Zain”, who was with respondent no.2 biological father, to be handed over to the petitioner- mother of the child subject to further order that may be passed in this petition finally. The petitioner was also further directed to attend the Court on the next date of hearing, which was kept on 05.08.2024 along with the child. 5. The petitioner was also further directed to attend the Court on the next date of hearing, which was kept on 05.08.2024 along with the child. 5. On passing of the order dated 01.08.2024, some unpleasant incident occurred and we avoided to record it in full detail with a view not to prejudice the case of either side, suffice it to quote the said portion of the order herein as under:- “At this stage, since unpleasant incident occurred, which we would like to avoid recording it, as told to us by the lady police officer, who accompanied the petitioner and the child to drop them outside the Court gate, we direct the Security Cell of the Gujarat High Court to drop the petitioner with child and her husband at Railway Station and they are directed to communicate possible threat, to the Railway Police enroute the train, which they board.” 6. The hearing was then adjourned on 05.08.2024, on that day Mr.Ashraf R. Ghoghari, learned advocate replaced Mr.Nadeem B. Mansuri and he filed his appearance with the Registry and his name was reflected in computer system. 7. Mr.M.M.Saiyed, learned advocate, who appeared for learned advocate Mr.Ashraf R. Ghoghari, sought time on that day with a permission to file additional affidavit. Pursuant thereto, matter was adjourned to 12.08.2024 and he tendered additional affidavit affirmed by respondent no.2 herein along with certain annexures. The said additional affidavit is ordered to be taken on record. 8. We have heard learned advocates appearing for the parties. 9. Ms.Maitri Patel, learned advocate for the petitioner submitted that since the birth of child he was with the petitioner. He was with her even after “Khula” i.e. divorce from her husband, which is accepted and consented to by the husband dated 31.10.2019 and since then child “Zain” was in established custody of the petitioner. She has further submitted that all of sudden on 21.04.2024 while she was residing at Mumbai, respondent no.2 herein snatched away custody from her by taking up quarrel with her and for that she had to complain before the Arnala Police Station, District Mira-Bhayandar, Vasai-Virar, which is registered as NCR No.0643/2024 dated 22.04.2024. She has further submitted that though it is registered as NC complaint, that too, for an offence under Sections 323, 504 and 506 of the Indian Penal Code, 1860 taking away of the custody is not even reflected therein. She has further submitted that though it is registered as NC complaint, that too, for an offence under Sections 323, 504 and 506 of the Indian Penal Code, 1860 taking away of the custody is not even reflected therein. She has further submitted that she being mother of a child aged about 5 years and he was in custody of her, respondent no.2 herein may be biological father, has no right to take him away from her without her consent and in absence of any court order for the custody. Therefore, she has requested that since the custody of minor son “Zain” is obtained by respondent no.2 herein illegally, it be restored in exercise of jurisdiction under Article 226 of the Constitution of India praying for a writ of habeas corpus. 10. As against that, Mr.M.M.Saiyed, learned advocate for respondent no.2 herein submitted that what is asserted in the petition that the husband snatched away the custody is not correct, but on the contrary she had willingly entrusted the custody to him, that too, under a written declaration duly notarized at Mumbai. The said declaration is produced along with affidavit-in-reply filed by respondent no.2 herein. 11. He has further submitted that the address shown in the NC complaint referred to by the petitioner is the premises taken on rent by respondent no.2 herein and leave and license agreement to that effect is also executed by him, which is annexed at page no.86 along with additional affidavit. Therefore, it is submitted that they are still having relation and therefore, voluntarily and willingly she handed over the custody of child “Zain” to him. It is further submitted that because of his son, he has taken this house on rent. He has further relied on certain photographs as also the chats annexed with the reply to submit that custody cannot be kept with the petitioner as she lives flamboyant life, which may affect the child. 12. It is further submitted that child is not safe in custody of the petitioner-wife as child was thrust into refrigerator, photograph of which is also annexed at page no.32 of the affidavit-in-reply. 12. It is further submitted that child is not safe in custody of the petitioner-wife as child was thrust into refrigerator, photograph of which is also annexed at page no.32 of the affidavit-in-reply. As asserted in the sur-rejoinder on behalf of respondent no.2, it is asserted that in fact the declaration was singed in the month of March, 2024 entrusting the custody to the petitioner respondent no.2 herein and despite that petitioner has never approached civil court challenging the said agreement nor the petitioner has approached the court under the Guardians and Wards Act. 13. Drawing attention of the Court to the documents, which are annexed with the additional affidavit asserting that the electricity charges of the flat, which has been obtained on leave and license basis, it is asserted that it is also borne by respondent no.2 herein for his son as it is evident from screenshots annexed with the additional affidavit. Drawing attention of the Court to page nos.104 and 105, which are the receipts of school fees annexed with additional affidavit, it is submitted that admission of child “Zain” in school was also undertaken by respondent no.2 herein. Other annexures in the form of affidavit filed by acquaintances of both petitioner as also respondent no.2 is also annexed with additional affidavit in support of the claim of the husband to have and retain the custody. 14. Relying on the decision in the case of Tejaswini Gaud and Ors. vs. Shekhar Jagdish Prasad Tewari and Ors., reported in AIR 2019 SC 2318 , more particularly head note (A), that too, later part, it is submitted that custody of a biological father, who is natural guardian cannot be said to be illegal, and therefore, present writ petition praying for a writ of habeas corpus should not be entertained. Another decision in the case of Sumedha Nagpal vs. State of Delhi, reported in (2000) 9 SCC 745 relied on to submit that custody of a child aged 5 years was with the father to the exclusion of the petitioner therein-mother for 7 months, the writ petition praying for writ of habeas corpus at the instance of the petitioner-mother therein came to be dismissed when she alleged that by deceitful means respondent-husband obtained the custody. 15. 15. Drawing the same analogy, he has submitted that since alleged custody is obtained, as claimed by the petitioner of the child, on 21.04.2024 and petition came to be filed in the month of June, 2024, it should not be entertained. 16. It is further asserted that parameters to have the custody of a child aged about 5 years, welfare of the child should be the paramount consideration and keeping in mind what is stated in the affidavit-in-reply, sur-rejoinder as also additional affidavit, the petitioner is not entitled to the custody of a child aged 5 years and therefore, this petition be rejected. 17. Having heard learned advocates appearing for the parties and going through the petition as also the pleadings filed by the parties, it appears that failed marriage has led to this ugly turn, whereby a necessity has arisen to file present petition for custody of a minor child aged about 5 years. Though the petitioner to some extent and respondent no.2 herein has extensively came out with mudslinging activity by way of filing an affidavit not only his but others as also producing certain photographs, which require deeper scrutiny as also leading of evidence before a competent court, in this custody battle, that too, by way of only writ of habeas corpus, where illegal confinement or taking away of a custody of a child by either parent is to be considered, respondent no.2 herein should have avoided such mudslinging activities by way of producing certain unpleasant, not only photographs, but some screenshots and/or video chat. It is not in the fitness of things to refer to all about it in this order. 18. However, considering the fact that from the date of “Khula” i.e. divorce, which took place on 31.10.2019, child “Zain” born on 28.04.2019 was in established custody of petitioner herein till date of taking away of that is alleged in this petition. As such it is not disputed at all that on divorce, which is consented to by the respondent no.2 herein by way of “Khula” the custody of the child was with the petitioner. As such it is not disputed at all that on divorce, which is consented to by the respondent no.2 herein by way of “Khula” the custody of the child was with the petitioner. At the same time, custody of a child was with the petitioner is not at all disputed prior to taking away of the child by respondent no.2 herein, but what is disputed by him by way of affidavit is that she has voluntarily entrusted custody of the child “Zain” to the respondent no.2 herein claiming that he has produced declaration on a stamp paper of Rs.100/- executed by the petitioner herein. By producing that declaration, it is submitted that petitioner has voluntarily given up the custody as she was to be operated for hips, for life time and declaring respondent no.2 herein as legal and natural guardian of their son “Zain”. Therefore, it is very clear that the custody of a child is with respondent no.2, as claimed by him entrusted on 17.04.2024. 19. However, prima facie that claim appears to be false one. First of all the declaration, which is on stamp paper of Rs.100/- appears to be printed in the year 2023. Apart from whether that stamp paper could be utilized beyond any particular period or not?, it is claimed to be issued by the Sub-Treasury office, Vasai on 16.04.2024 as signed by Additional Treasury Officer claiming to be issued on that day. However, at page no.21 stamp issued appears to, which is annexure-II, bears the date to be 18.04.2024 by stamp vendor. Still however, despite divorce taking place in the year 2019, it is claimed to be purchased by the petitioner in the earlier marital name in the year 2024, which she had 5 years prior thereto. 20. However, the written declaration bears the date of execution to be 17.04.2024, whereas stamp paper appears to have been issued on 18.04.2024 by the stamp vendor. Not only that it is notarized by the Notary on 25.04.2024. Neither on 17.04.2024 nor on 25.04.2024, as asserted by the petitioner, she was present at Mumbai and the documents in the form of hotel booking as also railway tickets issued shows that she was at Surat on such dates. 21. Not only that it is notarized by the Notary on 25.04.2024. Neither on 17.04.2024 nor on 25.04.2024, as asserted by the petitioner, she was present at Mumbai and the documents in the form of hotel booking as also railway tickets issued shows that she was at Surat on such dates. 21. Be that as it may, since there is no dispute about the custody of the child with the petitioner, since the date of divorce and handing over the same voluntarily to the respondent no.2, as claimed, appears to be prima facie incorrect, with a view not to prejudice the case of either side, we do not deliberate much on the contentions raised by the learned advocate for the respondent no.2. At the same time, what the learned advocate for respondent no.2 argued is the issues to be considered, who is best entitled for the custody, which would be taken into consideration by the competent court when custody proceedings are filed before it. However, when prima facie, custody is snatched away illegally, despite respondent no.2 herein being biological father, by an interim order, we already handed over the custody of the child to the petitioner, which we are continuing it hereby. 22. Referring leave and license agreement of premises, where at present also petitioner resides, it is submitted that rent is borne by him. However, that agreement is for a period from 20.01.2023 to 19.12.2023. Neither fresh agreement nor any receipt of payment of rent by respondent no.2 is produced by him. For whatever reasons, it is borne by respondent no.2 during the agreement period cannot validate snatching away custody of a child. Payment receipts of school fees, produced for the first time, that too, xerox copies, in additional affidavit and not in affidavit-in-reply, is subsequent to forceful taking away custody of a child, is of no consequence. Admission fee is paid in May 2024, whereas, term fee is paid on 29.07.2024 i.e. after respondent no.2 voluntarily appeared in this petition and during pendency of it. 23. Admission fee is paid in May 2024, whereas, term fee is paid on 29.07.2024 i.e. after respondent no.2 voluntarily appeared in this petition and during pendency of it. 23. The decision in the case of Tejaswini Gaud (supra) relied on by learned advocate for respondent no.2 is misplaced though respondent no.2 is a biological father and under normal circumstances, custody of a child with him cannot be said to be illegal, but in the facts and circumstances of the present case as narrated hereinabove, when the established custody of the child, which is with petitioner-wife since even date of divorce i.e. for a period of 5 years and more, is snatched away it can be termed to be illegal. Decision of the Supreme Court in the case of Sumedha Nagpal (supra) is also not helpful to the respondent no.2 as there was no material to show established custody with wife and claim made after seven months. In that case, it is claimed she was deprived of custody by deceitful means, driving her out of the house. However in the present case, even after divorce, child was in established custody of petitioner and snatched away after 5 years of it, claiming that she has voluntarily given, which is not correct. As petitioner has asserted that the child is snatched away, whereas respondent no.2-husband has come out with the case that the child is voluntarily handed over under a document executed, however, execution of the said document, for the reasons mentioned hereinabove, appears to be got up one and under a cloud, therefore, we hereby confirm our interim order entrusting custody to the petitioner herein. Respondent no.2 herein is free to move competent court in case he wishes to file any proceedings either for having the custody through the provisions of law before the competent court. In view thereof, this petition stands allowed to the aforesaid extent.