The Allahabad High Court, in a habeas corpus petition filed by a father, held that in a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law.
Brief Facts:
The present habeas corpus petition was filed by the petitioner, a father against his wife over his son, who had been staying away from him after his wife left the matrimonial home and registered an FIR against the petitioner under Section 498A, 323, 506 I.P.C., 3/4 of the D.P. Act and Section 4/3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that the petitioner is living at her maternal home in district Rampur and that the petitioner No. 1 (corpus) is presently with respondent No. 3. She has submitted that the custody of the petitioner No. 1 (corpus) was taken away from her, on 28.04.2023, and a complaint in this regard has also been lodged with the police. On a pointed query, as to whether she is willing to go to her matrimonial home, she has replied in negative. Further, it was submitted that the respondent is working as a labourer in district Rampur and the petitioner No. 1 (corpus) is his son and is under his care and custody. He has stated that petitioner No. 2 (his wife) is living separately due to a strained relationship. He has also stated that he is willing to take back petitioner No. 2 (his wife), but she is unwilling.
Observations of the court:
The court stated that in an application seeking a writ of habeas corpus for custody of the minor child, as is the case herein, 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 his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.
Further, it was stated that the role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases, the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.
It was then stated by the court that in a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of the 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.
The decision of the Court:
The court dismissed the petition and
Case Title: Hasaan Raza @ Taiyab And Anr. vs. State of U.P. and Ors.
Coram: Hon’ble Mr. Justice Yogendra Kumar Srivastava
Case No.: HABEAS CORPUS WRIT PETITION No. 983 of 2023
Advocate for the Petitioner: Mr. Brijesh Kumar Pandey
Advocate for the Respondent: Ms. Divya Ojha
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