Law: Criminal Procedure Code (V of 1898)

Section: 491,561A

Law: Guardians and Wards Act, 1890

Section: 7,12,25

Criminal Procedure Code (V of 1898)--- ----S. 491---Guardians and Wards Act (VIII of 1890), S. 7---Habeas corpus petition during pendency of guardianship application---Scope---Petitioner/mother contended that right of hizanat would control jurisdiction under habeas corpus---Validity---Mere pendency of a guardianship application or availability of such jurisdiction would not ipso facto debar jurisdiction of habeas corpus yet it would not control the absolute and exclusive jurisdiction of Guardian Court in such like matter but could only be availed under certain criterion/situation---Record revealed that the petitioner had, almost a year back, filed a suit for maintenance of one minor (who was with her) but had not moved to any lawful forum for custody of present minors (alleged detenues) who were still with respondent (father)---Said fact prima facie showed that at time of entering into legal fight with the respondent, petitioner was neither having a complaint of recent removal of present minors nor had felt any, urgency, though they were with the respondent at such time---Petitioner, after about two months , filed habeas corpus petition but without detailing those exceptional circumstances which could justify invoking of habeas corpus which legally was not a substitute to a proper guardianship application but an exception available in exceptional situation only, which too for temporary arrangement---In absence of exceptional circumstances, resort to habeas corpus jurisdiction could not be exercised, particularly when the petitioner had already filed application before Family Court under S. 7 of Guardians and Wards Act, 1890---Present case, prime facie, did not involve question of recent removal of minor from lawful custody as well no great urgency was shown to be existing which could justify removal of minors from otherwise lawful custody of their father (respondent)---Minors (alleged detenues) were , admittedly, not suckling child (very tender age) but were school going children and there had not been any allegation or apprehension of any harm/legal injury to minors if they stayed with respondent (father) during the course parties would get question of welfare…

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