Habeas Corpus Petition Maintainable In Child Custody Matters When Detention of Minor By Other Parent Is Proved Illegal: Gujarat High Court

The Gujarat High Court, while dealing with a plea filed by the mother of a minor child, recently held that the habeas corpus petition is maintainable even in matters of child custody, provided that detention of the minor child by the other parent or others is proved to be illegal and without any authority of law.

The court made the observation while relying upon Supreme Court's observations in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others

The petitioner had prayed for the issuance of the writ of habeas corpus directing the Police Authorities to produce her minor son before the court and to hand over him to her. The allegation was that her husband and others snatched away their son from her hands on October 02 in 2021.

The couple got married in 2013. However, due to certain disputes, she left her matrimonial home along with her son in 2019 and initiated proceedings under Section 125 of the Code of Criminal Procedure, 1973 and Section 498A of the Indian Penal Code, 1860 against her husband and his family members.

The petitioner argued that looking at the age of the child, his permanent custody should be handed over to her, since she will take proper care of him. The petitioner placed reliance on the Supreme Court decision in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and Others, and decisions of high courts.

The respondents, on the other hand, raised a preliminary contention that the petition seeking issuance of a writ of habeas corpus for the custody of the minor child was not maintainable, since the writ of habeas corpus is a prerogative writ which is an extraordinary remedy and which is issued only when in the circumstances of a particular case, ordinary remedy provided by the law is either not available or is ineffective.

The respondents argued that in this case, an ordinary remedy was available under the Hindu Minority and Guardianship Act or he Guardians and Wards Act. Reliance was placed on the Supreme Court decision in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, (2019).

The respondent husband also argued that since he was the natural guardian of the child as per Section 6 of the Hindu Minority and Guardianship Act, the petition was not maintainable.

Finally, the respondents argued that looking at the financial condition of the respondents, they were in a better position to take proper care of the child, and hence his custody must be handed over to them. Reliance was placed on the Allahabad High Court decision in Shradha Kannaujia (Minor) and Another v. State of U.P. and Others, Habeas Corpus.

The division bench of Justice Vipul M. Pancholi and Justice Dr. A. P. Thaker held the writ of habeas corpus to be maintainable in the present case.

In connection with the question of custody, the Court relied on various decisions, specifically the decision in Rajeswari Chandrasekar Ganesh, and observed that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.

The Court also observed that the question cannot be determined by weighing the economic circumstances of the parents or their capacity to provide material and physical comfort, but on a consideration including psychological, spiritual and emotional welfare of the child.

In this case, since the child was with his mother since she left her matrimonial home in 2019, the Court ordered for the custody of the child in her favour. The court in October 2021 had granted interim custody of the minor child to his mother.

Case Title: Manyata Avinash Dolani v. State of Gujarat and Others