JUDGMENT : A.Y. KOGJE, J. 1. Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent No.-1-State. Learned advocate Mr. Chintan Gandhi waives service of notice on behalf of respondent Nos.4 to 6. 2. This petition under Article 226 of the Constitution of India is filed by the petitioner for issuance of writ of Habeas Corpus to produce the corpus i.e. respondent No.7, a minor named ‘Hiya’ being daughter of the petitioner and her husband-respondent No.4- Jigar Balvantbhai Vala. The bare facts are that the petitioner and respondent No.4 had entered into a marriage on 10.03.2017 and out of the wedlock, ‘Hiya’ (corpus) was corpus on 12.10.2020. 3. It is a case where there was a matrimonial discord between the petitioner and respondent No.4 and there were allegations that the petitioner was beaten and driven out of the matrimonial home at Vadodara and the corpus Hiya forcibly snatched away from her because of which the petitioner has filed a written complaint with J.P. Police Station, Vadodara. It is a case where both petitioner and respondent No.4 originally belonged to Bhavnagar however, have re-located themselves at Vadodara, where both the petitioner and respondent No.4 were working at the different private banks. It is alleged that the petitioner had returned to her parental home at Bhavnagar where she was required to be treated, at the same time, respondent No.4 after having taken the forcibly daughter with him also returned to Bhavnagar. 4. It appears that as on today, both the petitioner and respondent No.4 are still working with the respective banks, but at Vadodara and Bhavnagar respectively. 5. It is submitted that the petitioner made several attempts seeking custody of the minor daughter as she was only two and half year’s old and needed utmost care of her mother. It appears that over and above, the complaint in writing to J.P.Nagar Police Station and an application under Section 97 of the Code of Criminal Procedure (for short “the Code”) has also been filed before the 6th Additional Chief Judicial Magistrate at Bhavnagar, where also the petitioner failed to get any relief as the same came to be dismissed by an order dated 17.06.2023. 6. 6. It appears that therefore, the petitioner was constrained to file the present petition, wherein the previous bench had issued notice under order dated 31.07.2023, requiring the corpus to be kept present before the Court on the next date and accordingly when the corpus was produced on 10.08.2023, this Court has passed an order entrusting the custody of Hiya to the petitioner under the interim directions. 7. Taking cognizance of a matrimonial discord being the root of the matter, this Court by an order dated 18.09.2023 had relegated the parties for mediation with the mediation center attached to this Court. After the necessary sessions before the mediator, ultimately by a report dated 25.10.2023, the mediator had reported that the mediation was unsuccessful and once again the matter was placed before this Court. 8. Learned advocate for the petitioner submitted that it was at the behest of the unlawful act of the respondent No.4 that the respondent No.4 was required to leave the matrimonial home and it was at that time that the petitioner and the minor daughter were forcibly separated. It is submitted that the petitioner has made all the attempts so that matrimonial dispute does not come in way of upbringing of minor however, when the things were beyond control, she had to resort to legal proceedings in the interest of the minor. It is submitted that as the minor is only two and half years old and that a female child, the welfare of the minor would lie, but in company of the mother. It is submitted that the petitioner is a well educated with necessary means to sustain herself. Not only that but she is also supported by her parents. It is submitted that though the petitioner is having step father since her childhood, both her parents are looking after her and are constant supporting even for the upbringing of the minor Hiya. 9. Learned advocate for the petitioner has relied upon the decision of the Apex Court in case of Rajeshwari Chandrasekar Ganesh v/s. The State of Tamilnadu and Ors, reported in 2022/INSC/720 to substantiate his case that in case of custody matters, writ petition for habeas corpus can be maintainable. 9. Learned advocate for the petitioner has relied upon the decision of the Apex Court in case of Rajeshwari Chandrasekar Ganesh v/s. The State of Tamilnadu and Ors, reported in 2022/INSC/720 to substantiate his case that in case of custody matters, writ petition for habeas corpus can be maintainable. He has then relied upon the decision of this Court in case of Sejalben Arpit Shah v/s. State of Gujarat, reported in (2019) 3 GLR 2247 to substantiate his argument that considering the age of the minor to be only two and half years, the custody naturally would lie with the mother. 10. As against this, learned advocate Mr. Chintan Gandhi for respondent No.4 vociferously argued that the writ of habeas corpus will not be maintainable and the alternative remedy available to the petitioner is to resort an application under Sections 7, 8, 9, 10 and 11 of the Guardians and Wards Act, 1890 and interim custody if any is required to file an application under Section 12 under the Guardians and Wards Act, 1890 and these proceedings would lie before the Civil Court. Learned advocate has submitted that even as per the definition of natural guardian of a Hindu minor under Section 6 of the Hindu Minority and Guardianship Act, 1956, father is entitled to have the custody and therefore, when the corpus Hiya was admittedly with the father, it cannot be said that she was in illegal custody or wrongfully restrained so as to give rise to a cause of action. 11. Learned advocate has thereafter submitted that the petitioner had already filed an application under Section 97 of the Code and by drawing an attention of this Court to the order dated 17.06.2023 submitted that the Magistrate Court had rightly not granted the relief to the petitioner as the issue involved is that of a custody for which provisions are made under the Hindu laws. 12. It is submitted the petitioner has not challenged the order of the Magistrate Court, Bhavnagar and therefore, it has attained finality. The petitioner therefore, cannot be permitted to travel beyond the order passed by the Magistrate Court. 12. It is submitted the petitioner has not challenged the order of the Magistrate Court, Bhavnagar and therefore, it has attained finality. The petitioner therefore, cannot be permitted to travel beyond the order passed by the Magistrate Court. Learned advocate submitted that it cannot be said that the respondent No.4 has forcibly separated the petitioner from the child as the petitioner voluntary left the matrimonial home leaving behind the minor in the care of the respondent No.4 and now the petitioner cannot claim the custody. Learned advocate submitted that the respondent No.4 is serving in A.U Small Finance Bank and with the help of his parents, he is able to attend the requirement of child and therefore, no cause of action has taken place for invoking writ jurisdiction of this Court. Learned advocate for respondent No.4 has taken admission of the minor daughter Hiya in the playgroups and fees have been paid and therefore, the minor has settled down properly in the present environment and it will not be in the interest to disturb the minor in between. 12.1 It is lastly submitted that the family members of the petitioner are head strong persons and are known to take law in their hands and previously also, there was an incident where the petitioner had aborted a fetus. He has drawn attention of this Court to medical case papers placed alongwith the additional affidavit by the respondent No.4. 12.2 Learned advocate has relied upon the decision of the Apex Court in case of Anjali Anil Rangari v/s. Anil Kripasagar Rangari, reported in 1997 (10) SCC 342 to submit that the recourse available to the petitioner is to file an application under the provisions of Hindu Minority and Guardianship Act or Guardians and Wards Act. 12.3 Reliance is placed upon the decision of this Court in case of Savitaben Mahendrabhai Parmar v/s. State of Gujarat, reported in 2013 (2) GLR 1006 to support his submission that it is not necessary that even if the age of the minor is below five years, the custody of such child with the father has to be treated as ‘confinement’. 12.4 He has lastly relied upon the decision of Apex Court in case of Tejaswini Gaud v/s. Shekhar Jagdish Prasad Tiwari, reported in, 2019 (7) SCC 42 to submit that the writ of habeas corpus is not for the purpose of justifying the legal custody and the writ is essential only in the case where the detention of the minor is with the person, who is not entitled to his legal custody. 13. In rejoinder, learned advocate for the petitioner has submitted that the incident of high handed behavior against the petitioner by quoting the charge-sheet being filed against the petitioner, in reply to the second additional affidavit of the respondent No.4, it is submitted that the said incident has nothing do with the parenting and it was while the petitioner at the relevant time was working as Journalist had protest against the illegal and exorbitant charging of fees from the school students and it is at that stage the driver of the school bus misbehaved with the petitioner, which resulted in filing of the FIR at the hands of such driver. 14. Heard learned advocates for the parties and perused the documents placed on record. The issue of maintainability of writ of habeas corpus in the custody matter is not more res-integra in view of various pronouncements of the Apex Court from time to time and in case of Rajeshwari Chandrasekar Ganesh (supra), the Apex Court in para-91 has held as under:- “91. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child.” 15. The facts of the case as would indicate that out of the wedlock between the petitioner and respondent No.4, the corpus respondent No.7 Hiya was born on 12.10.2020 and therefore, at present the age of the corpus is two and half years. 16. The fact that the corpus is a female child and a minor as per Section 6 of the Hindu Minority and Guardianship Act, the father is treated to be a natural guardian however, very provision provides that custody of minor who has not completed the age of five years shall ordinarily be with the mother. 17. Apart from the above, this Court in case of Sejalben Arpit Shah (supra), explaining the principle of “tender years rule” in paras-51 and 52 which read as under:-’ “51. We are of the view that the mother should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents may be taking very good care of Priyanshi, but at the same time, they cannot be a substitute for natural mother. In fact, there is no substitute for mother's love in this world. It appears that the grandparents are old. The respondent no.3 is a professional and must be keeping himself quite busy as a Chartered Accountant. Considering the totality of facts and circumstances, the welfare of the child lies with the mother. At this stage, we deem fit to quote few observations of the Supreme Court in the case of Vivek Singh (Supra) as those are very apt so far as the case on hand is concerned. In Vivek Singh (Supra), the Supreme Court had to deal with almost an identical problem like the one on hand. At this stage, we deem fit to quote few observations of the Supreme Court in the case of Vivek Singh (Supra) as those are very apt so far as the case on hand is concerned. In Vivek Singh (Supra), the Supreme Court had to deal with almost an identical problem like the one on hand. The Supreme Court has observed as under: This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are 'right' in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellant's effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellant's view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as 'The Parental Alienation Syndrome'. It has at least two psychological destructive effects: (i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts. (ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's 4 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No.2: The American Academy of Psychoanalysis, 1985). primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community. 52. The "tender years rule" has found statutory recognition and the legislative policy underlying thereto is based not only on the social philosophy but also in realities and points in the direction that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. In the present case, Priyanshi is just 14 months old. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. In the present case, Priyanshi is just 14 months old. The parties are Hindus and the "tender years rule", as statutorily recognized, is immediately attracted in their case and should not be ignored in judging her welfare.” 18. Time and again, the Apex Court has also held that in case of custody of minor, the best interest and welfare of the child remains paramount consideration and therefore, the Apex Court in case of Yashita Sahu v/s. State of Rajasthan and others, reported in, (2020) 3 SCC 67 has held in para-22 as under:- “22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.” 19. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.” 19. The Court has taken into consideration the submissions of both the sides and has also taken into consideration the interaction with both the parties as well as the report of failure at mediation. During the interaction, the Court was conveyed in detail reasons why gap is to too huge to be breached at this stage, but the same may not be referred to a present case so as to prevent to cause prejudice to any party. 20. The stand of the respondent No.4 that the petitioner has voluntarily left the matrimonial home and that in the past, she had aborted a fetus without the knowledge of the respondent No.4, it would be appropriate to refer to the submission made by learned advocate for the petitioner that in the proceedings under Section 125 of the Code (Page 49 to 53), it was the petitioner who had indicated about the medical reason, as a result of which, there was a miscarriage which the respondent No.4 is labeling as ‘abortion’. It is apparent that the information of miscarriage alongwith the medical case papers was communicated by the petitioner herself to the respondent No.4 and therefore, attempt on the part of respondent No.4 to paint the petitioner as a noncaring mother cannot be accepted. 21. At the same time, it is clear from the complaint given in writing to the petitioner immediately to the concerned J.P.Police Station about the incident of forcible separation from a minor and therefore, it cannot be said that the petitioner had voluntarily left the matrimonial home. 22. With regard to the judgments relied upon by the respondent No.4, the same are pertaining to the exercise of powers under Section 97 of the Code and in the opinion of the Court, the exercise of powers under Section 97 of the Code cannot act as a bar for invoking writ jurisdiction of this Court. 22. With regard to the judgments relied upon by the respondent No.4, the same are pertaining to the exercise of powers under Section 97 of the Code and in the opinion of the Court, the exercise of powers under Section 97 of the Code cannot act as a bar for invoking writ jurisdiction of this Court. 22.1 Reliance is placed by the respondent No.4 in case of Tejaswini Gaud (supra), the facts of the matter before the Apex Court would indicate that the custody of child was being claimed by maternal aunt as against the claim of father of the minor child, wherein while issuing the writ of habeas corpus, the High Court of Bombay had passed a judgment to handover the custody of the minor child to the respondent No.1-father. It is in this fact situation that in para-18, the Apex Court had observed that in child custody matters, powers of High Court in granting writ is qualified only in cases where the detention of minor is by a person who is not entitled to his legal custody. However, at the same time, the Apex Court did hold that the in child custody matters, writ of habeas corpus is maintainable wherever it is proved that the detention of minor by the parent or others was illegal or without any authority of law. In the present case, though it cannot be said that the custody of the minor with the father can be treated to be an illegal however, on the principle of the welfare of the minor to be a paramount consideration, which will outweigh any other consideration including the consideration of establishing whether the custody was illegal or legal. 23. As is held in the preceding paras and in the facts of the present case, the Court is of the view that the best interest and welfare of the child would lie with her custody that the mother and therefore, the interim arrangement by this Court under order dated 10.08.2023 is hereby confirmed. 24. The Court may herein provide with due regard to the welfare of the child till the Court of appropriate jurisdiction decides upon the custody of the child, if initiated. 24. The Court may herein provide with due regard to the welfare of the child till the Court of appropriate jurisdiction decides upon the custody of the child, if initiated. The visitation rights be provided to the father and accordingly once in a week i.e. on Sunday, the custody of the child be given to the respondent No.4- father for period between 9AM to 9 PM. During this period, it is open for the petitioner to go in company of respondent No.4- father. 25. The Court would proceed to hold that the findings given hereinabove, is only for the purpose of issuing a writ of habeas corpus and would therefore, would not come in way in any manner if any proceeding, as available under the law, by either of the parties if initiated. 26. With the aforesaid directions, the petition stands allowed. Rule is made absolute to the aforesaid extent.