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The present petition for a writ of habeas corpus has been filed seeking custody of the petitioner n. 2, corpus, stated to be a minor of age about five years and ten months, by the petitioner no. 1 who asserts to be his father. 3. The facts as stated in the writ petition indicate that the petitioner no. 2 was born in the month of January, 2014 and on 11.05.2015, the wife of the petitioner no. 1 i.e. the mother of the corpus, is stated to have committed suicide at the petitioner's home and thereafter an FIR was lodged against the petitioner no. 1 and other family members, registered as Case Crime No. 149 of 2015 under Section 498-A, 304-B IPC and 3/4 D.P.Act, Police Station Bahariya, District Prayagraj and the petitioner no. 1 was sent to jail on 17.05.2015. In an earlier decision in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi2, where in almost similar circumstances the father was facing a charge under Section 498-A I.P.C., it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.
10. In a recent decision in Rachit Pandey (minor) and another vs. State of U.P. and 3 others3 this Court after referring to the authoritative pronouncements in the case of Nithya Anand Raghvan vs. State (NCT of Delhi) and another4, Sayed Saleemuddin vs. Dr. Rukhsana and others5 and Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others6, has held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the pregorative writ of habeas corpus, is in the nature of extraordinary remedy, which may not be used to examine the question of custody of a child except where in the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.
11. Learned Senior Counsel appearing for the petitioners has not been able to point out as to how, in the facts and circumstances of the present case, the custody of the petitioner no. 2 with his maternal grand- father can be said to be illegal or unlawful so as to pursuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.
12. The habeas corpus petition stands dismissed accordingly.