Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter, Sushil Kumar Tiwari And 4 Others V/s:- the State Of U.P. And 5 Others[ HABEAS CORPUS WRIT PETITION No. – 632 of 2021] dealt with an issue mentioned above.
Pleadings in the petition are to the effect that the marriage of petitioner no. 1 was solemnized with respondent no. 4 on 09.06.2010 and the petitioner no. 2 was born on 23.08.2015 and that petitioner no. 1 and respondent no. 4 are living separately for the past several years. It is averred that petitioner no. 1 has filed a divorce petition and respondent no. 4 has also instituted certain legal proceedings against petitioner no. 1.
The question of maintainability of a habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others12, and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective.
The court perused the facts and arguments presented in the case at hand In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is illegal and without the authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum.
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Judgment reviewed by Sakshi Mishra
