The Patna High Court has recently held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy and the writ is issued, wherein the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective.
The Bench of Justice Raj Beer Singh further said,
“The power of the High Court, in granting a writ, in child custody matters may be invoked only in cases where the detention of a minor is by a person, who is not entitled to his/her legal custody.”
In the instant case, the court was dealing with a Habeas Corpus petition seeking the custody of the minor daughter of the second petitioner (the mother) aged four years. The Second petitioner married respondent No.4 (the husband) in the year 2014 and they were blessed with a girl child in 2016. The mother was harassed by her husband and other private respondents and in 2020 they threw her out from the matrimonial home and her minor girl (corpus) was snatched by the private respondents.
It was the case of the petitioner’s counsel that the husband was not treating the child well and that she was illegally detained by her father and his family members. In this connection, the mother approached police authorities but to no avail. No information was being given to her regarding her child. Hence custody of the child was sought by the mother.
It was observed by the court at the outset that there was a marital dispute between the husband and the wife and thus a petition under section 13 of the Hindu Marriage Act was already filed.
To understand the object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child, the court made reference to the case of Sayed Saleemuddin v. Dr. Rukhsana and others (2001)5 SCC 247 wherein it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.
Further, to look into the issue of maintainability of a habeas corpus petition under Article 226 of the Constitution of India in matters of custody of the minor, reference was made to Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCC 42, wherein 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.
Further, it was observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be considered to be dependent on the jurisdictional fact, where the applicant establishes a prima facie case that the detention is unlawful.
“It is only where the aforementioned jurisdictional fact is established that the applicant would become entitled to the writ. In an application seeking a writ of habeas corpus for custody of 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/her welfare requires that the present custody should be changed and the child should be handed over in the care and custody of someone else. Proceedings in the of habeas corpus may not be used to examine the question of the custody of a child”, said the Bench.
Regarding the factual situation of the case it was observed by the court that the matter relating to custody of the child during the pendency of the proceedings under the Hindu Marriage Act, 1955 HMA was governed in terms of the provisions contained under Section 26 thereof.
Next, the court went on to examine whether the custody of the minor with the private respondent, who is named in the petition, is lawful or unlawful. In this respect, the court opined that the private respondents were none other than the biological father and grandparents of the minor child. This being the position, it could not be said that the custody of the child with private respondents was unlawful.
The court added that in the matter of custody of a child, 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 and that 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.
Thus, while dismissing the application, the court adjudged,
“Considering the facts of the matter as well as the aforesaid position of law, it is apparent that the remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890 GWA, as the case may be.”
Case Details
Name: Shradha Kannaujia (Minor) And Another v. State Of U.P. And 5 Others
Number: HABEAS CORPUS WRIT PETITION No. - 716 of 2020
Bench: Hon'ble Raj Beer Singh, J.
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