Why Regular Civil Courts or Family Courts Are In Better Position Than Writ Courts To Deal With Child Custody Cases? Supreme Court Explains
In a significant judgment where the Supreme Court deprecated the High Court's order of disturbing the custody of the toddler (child between the age group of 1 to 3 years) in a Writ Proceeding, it explained why instead of Writ Courts the Regular Civil Courts or Family Courts are in an advantageous position for dealing with child custody cases.
One of the main reasons on point of law provided by the Court is that a dispute related to the custody and guardianship of the minor could be best decided in a substantive proceeding undertaken under the Guardianship and Wards Act (“GW Act”). According to the Court, the regular courts dealing with such cases are in an advantageous position than the Writ Court because of the following reasons:
“Regular Civil/Family Court dealing with child custody cases is in an advantageous position. The Court can frequently interact with the child. Practically, all Family Courts have a child centre/play area. A child can be brought to the play centre, where the judicial officer can interact with the child. Access can be given to the parties to meet the child at the same place. Moreover, the Court dealing with custody matters can record evidence. The Court can appoint experts to make the psychological assessment of the child. If an access is required to be given to one of the parties to meet the child, the Civil Court or Family Court is in a better position to monitor the same.”, the bench comprising Justices Abhay S Oka and Augustine George Masih observed.
The Court also summarized the principles regarding habeas corpus writs dealing with child custody as follows :
- Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy;
- The High Court always has the discretion not to exercise the writ jurisdiction depending upon the facts of the case. It all depends on the facts of individual cases;
- Even if the High Court, in a petition of Habeas Corpus, finds that custody of the child by the respondents was illegal, in a given case, the High Court can decline to exercise jurisdiction under Article 226 of the Constitution of India if the High Court is of the view that at the stage at which the Habeas Corpus was sought, it will not be in the welfare and interests of the minor to disturb his/her custody;
- As far as the decision regarding custody of the minor children is concerned, the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking Habeas Corpus concerning a minor
- When the Court deals with the issue of Habeas Corpus regarding a minor, the Court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. The Court has to act based on humanitarian considerations. After all, the Court cannot ignore the doctrine of parens patriae.
Also From Judgment: 'Parties' Rights Can't Override Child's Welfare' : Supreme Court Sets Aside HC Order Giving Father Toddler's Custody From Maternal Relatives
Case Title: Somprabha Rana & Ors. versus The State of Madhya Pradesh & Ors. Crl.A. No. 3821/2023
Citation : 2024 LiveLaw (SC) 666