Writ Of Habeas Corpus Can Be Issued When The Detention Of A Minor Is By A Person Who Is Not Entitled To His Legal Custody: SC [Read Judgment]

The bench comprising Justice R. Banumathi and Justice R. Subhash Reddy affirmed a Bombay High Court judgment that directed the relatives of a deceased mother to hand over the custody of the child to the-father. The contention raised in this case [Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari]  was that the writ of habeas corpus cannot be issued when efficacious alternative remedy is available to the father under Hindu Minority and Guardianship Act, 1956.

Addressing this argument, the bench opined that the detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. Thus, for, restoration of the custody of a minor from a person who according to the personal aw, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction, the court said. It explained:

"Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."

What is important is the welfare of the child

About the alternative remedy under Hindu Minority and Guardianship Act or the Guardians and Wards Act, the bench said:

"There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

Affirming the High Court view, the bench observed that in this case, the father has neither abandoned the child nor has deprived the child of a right to his love and affection. It also noted that he is a highly educated person and is working in a reputed position and that his economic condition is stable."The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child.", the court added.

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