Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while examining the scope of the writ of habeas corpus, expressed that,
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.
Petitioner 1 asserted himself to be the father of the petitioner 2 corpus and filed the present habeas corpus petition alleging that the corpus was under illegal custody of his mother-respondent 4.
Writ of Habeas Corpus
Writ of habeas corpus is a prerogative writ and an extraordinary remedy, it is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.
The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, and 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.
Maintainability of Habeas Corpus Petition
The question of maintainability of habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 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.
High Court stated that the exercise of extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdiction fact where the applicant establishes a prima facie case that the detention is unlawful.
Only where the above-mentioned jurisdictional fact is established the applicant would become entitled to the writ as of right.
Further, the Bench added 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 to be the welfare of the child.
In the present matter, petitioner 2 was of the age of 6 years and under the exclusive care and custody of his mother since the time he was an infant of about 2 years of age.
Custody with Mother: Lawful or Unlawful?
High Court stated that, the private respondent was none other than the biological mother of the minor child. This being the fact, it may be presumed that the custody of the child with his mother is not unlawful.
It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person-including father of the child, in exercise of writ jurisdiction.
In view of the above discussion, Court did not exercise its extraordinary jurisdiction to entertain the petition seeking a writ of habeas corpus. [Sushil Kumar Tiwari v. State of I.P., 2021 SCC OnLine All 882, decided on 6-12-2021]
Advocates before the Court:
Counsel for Petitioner:- Maqsood Ahmad Beg, Naiyar Masroof Siddiqui
Counsel for Respondent :- G.A.