JUDGMENT : 1. Petitioner No.2, through the medium of present petition, has sought a writ of Habeas Corpus against the official respondents seeking production of his minor son (petitioner No.1) and to handover his custody to him. In the petition, it has been alleged that marriage between petitioner No.2 and respondent No.4 was solemnized on 04.02.2013 at Jammu and out of this wedlock, petitioner No.1 was born on 19.08.2014. It has been further submitted that respondent No.4, after six months of marriage, started misbehaving with petitioner No.2 and his family members and despite best efforts on the part of petitioner No.2 and his family members, the things did not improve. 2. On 01.09.2020, respondent No.4 without any justifiable cause left her matrimonial home after quarreling with petitioner No.2 and started living separately. She also took the custody of her minor son (petitioner No1). It has been submitted that respondent No.4 filed a petition under Section 12 of Protection of Women from Domestic Violence Act against petitioner No.2 and his family members before the Court of Special Excise Mobile Magistrate, Jammu, but the same was dismissed by the learned Magistrate on 11.03.2022 for non-prosecution and that application for its restoration is pending before the same Court. It has been further submitted that a petition under Section 13 of Hindu Marriage Act has also been filed by respondent No.4 against petitioner No.2 which is pending before the Principal Judge, Family Court Jammu. 3. According to petitioner No.2, respondent No.4 developed intimacy with respondent No.5 and she started living with her initially at Sanjay Nagar, Jammu along with her minor son (petitioner No.1) and thereafter, she left for Mumbai and shifted her son without consent of petitioner No.2. It has been submitted that petitioner No.2 also went to Mumbai and stayed with respondents No. 4 and 5 for about 15 days, but he was maltreated by them, as a result of which, petitioner No.2 came back to Jammu. It has been further submitted that petitioner No.1, the minor son was willing to accompany petitioner No.2 when he left for Jammu from Mumbai, but he was not allowed to accompany him. Petitioner No.2 is also stated to have approached the police with a complaint against respondents 4 and 5, but no action has been taken. According to petitioner No.2, his minor son (petitioner No.1) is under illegal custody of respondents 4 and 5. Petitioner No.2 is also stated to have approached the police with a complaint against respondents 4 and 5, but no action has been taken. According to petitioner No.2, his minor son (petitioner No.1) is under illegal custody of respondents 4 and 5. Hence, the present petition. 4. Notice of the petition was issued to the respondents and respondent No.4 was also directed to produce petitioner No.1 before the Court. Pursuant thereto, Sh. Ayushman Kotwal entered appearance on behalf of respondent No.4 and respondent No.4 also appeared in person before this Court along with her minor son (petitioner No.1) on 23.04.2024. Mr. Kotwal, learned counsel raised a preliminary objection as regards the maintainability of the petition. He has contended that the instant petition is not maintainable, for the reason that the custody of minor son with her mother, cannot be termed as ‘illegal detention’, therefore, a petition in the form of Habeas Corpus cannot be maintained. 5. I have heard learned counsel for the parties on the question of maintainability of the petition and perused the record. 6. Learned counsel appearing for petitioner No.2 has contended that the circumstances in which respondent No.4 has taken over the custody of petitioner No.1, the minor son, clearly indicates that he has been illegally detained. The learned counsel has submitted that the behavior of respondent No.4 towards petitioner No.2 has all along been cruel in nature and that the minor son desires to live with his father, but he is being prevented from doing so by respondents 4 and 5. Learned counsel for petitioner No.2 has contended that while considering the maintainability of a Habeas Corpus petition, the Court has to take into account the best interest of the minor child and in the instant case, the best interest of petitioner No.1 lies in his residing in company of his father. To buttress his contention, learned counsel has relied upon a judgment of the Supreme Court in the case of Yashita Sahu vs. State of Rajasthan and others, AIR 2020 SC 577 . 7. Learned counsel for respondent No.4, on the other hand, has contended that petitioner No.2 cannot maintain a writ in the form of Habeas Corpus against the mother of minor child, as custody of a minor son with his mother, can never be termed as ‘illegal’ in nature. 7. Learned counsel for respondent No.4, on the other hand, has contended that petitioner No.2 cannot maintain a writ in the form of Habeas Corpus against the mother of minor child, as custody of a minor son with his mother, can never be termed as ‘illegal’ in nature. It has been contended that, if, at all, petitioner No.2 has any grievance with regard to custody of minor son with her mother, the proper course for him is to approach the Family Court and seek an order of custody under the provisions of Guardians and Wards Act. 8. The question, that is required to be determined in this case, is as to whether a writ in the nature of Habeas Corpus seeking a direction upon the official respondents to produce petitioner No.1, the minor child so as to handover his custody to petitioner No.2, his father, can be maintained before this Court. 9. There is no dispute to the fact that petitioner No.2 happens to be the husband and respondent No.4 happens to be his wife. It is also not in dispute that, out of the said wedlock, petitioner No.1, who is aged about 10 years, was born. Petitioner No.2 has admitted that the custody of his minor child is presently with respondent No.4, the mother, who happens to be his natural guardian. It is also discernible from the pleadings filed by petitioner No.2 that there is a matrimonial discord going between petitioner No.2 and respondent No.4 regarding which proceedings under the Protection of Women from Domestic Violence Act are pending before the learned Magistrate and a petition under Section 13 of Hindu Marriage Act is pending before the Family Court. 10. The question arises as to whether in such a scenario, a petition for grant of writ of Habeas Corpus can be maintained by one parent to seek custody of minor child from another parent. This issue has been a matter of deliberation and discussion in a number of cases before the Supreme Court. It would be apt to refer to one such decision of the Supreme Court so as to understand the legal position on this issue. 11. In Tejaswani Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 , the Supreme Court has, while considering the aforesaid issue, observed as under: “19. It would be apt to refer to one such decision of the Supreme Court so as to understand the legal position on this issue. 11. In Tejaswani Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 , the Supreme Court has, while considering the aforesaid issue, observed as under: “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. 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. 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. 21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent- father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India”. 12. From a perusal of the aforesaid analysis of law on the subject, it is clear that, in child custody matters, the power of the High Court in granting the writ is confined only to the cases where detention of a minor is by a person who is not entitled to his legal custody. Thus, when custody of a minor child is with a parent or any other person without any authority of law, the same would become illegal and the High Court would get jurisdiction to issue a writ in the nature of Habeas Corpus for production of such minor child and decide about his/her custody. 13. Adverting to the facts of the present case, the custody of minor child is with respondent No.4, who happens to be his mother. It is not the case of petitioner No.2 that custody of minor child was handed over to him by any Court or authority and that respondent No.4 is holding the custody of petitioner No.1 in violation of any direction of the Court. It is not the case of petitioner No.2 that custody of minor child was handed over to him by any Court or authority and that respondent No.4 is holding the custody of petitioner No.1 in violation of any direction of the Court. In the absence of any orders passed by any Court with regard to the custody of the minor son, his custody with mother cannot be held unlawful. 14. In order to present a Habeas Corpus petition for release of a person, it has to be shown that such person is in detention of any authority or of any private individual. If the contents of the petition do not disclose detention of a person, there is no cause for maintaining the said petition. As already indicated, in the present case, the contents of the writ petition do not show that petitioner No.1 has been detained by respondent No.4. What is revealed from the contents of the present petition is that the custody of petitioner No.1 is with his mother who happens to be his natural guardian. Thus, the petition does not disclose any cause of action in favour of petitioner No.2 15. So far as the judgment relied upon by learned counsel for the petitioner No.2 is concerned, in the said case, wife had brought the minor to India in violation of orders of the jurisdictional Court in USA and, as such, the custody of the child was termed as ‘illegal’. It is in those circumstances that the Supreme Court held that a writ of Habeas Corpus was maintainable. In the present case, as already stated hereinbefore, there is no Court order prohibiting respondent No.4 from having the custody of her minor son, therefore, the ratio laid down in Yashita Sahu’s case (supra) cannot be made applicable to the facts of the present case. 16. In the present case, it seems that petitioner No.2 has approached this Court without exhausting the alternative and effective remedy of approaching the Family Court, where a petition under Section 13 of Hindu Marriage Act is pending and the petitioner No.2 could have easily applied to the said Court for grant of interim custody of the child in terms of Section 26 of the said Act. Having regard to the fact that respondent No.4 is admittedly having the custody of minor child for the last about 4 years ever since she has left the company of petitioner No.2, there are no extraordinary circumstances that would persuade this Court to entertain the present petition despite the existence of alternative and effective remedy of approaching the Family Court which is available to petitioner No.2. The issue, whether it would be in the interest of the minor child to handover his custody to his father, can be determined only after a detailed enquiry, therefore, it would not be appropriate for this Court to exercise its extraordinary writ jurisdiction. 17. For the foregoing reasons, the instant writ petition is held to be not maintainable and the same is dismissed accordingly, leaving it open to petitioner No.2 to work out proper remedy.