Father Can't File Habeas Corpus Petition To Seek Child's Custody From Mother: Karnataka High Court Imposes 50K Cost

A division bench of Justice B Veerappa and Justice M G Uma while dismissing the petition filed by Gaurav Raj Jain, imposed a cost of Rs 50,000 on him, stating that no ground to allow the writ petition is made out and (petitioner) has abused the judicial process. The amount is payable within a month to the Police Welfare Fund.

The bench observed

"It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of process of court. One way to curb this tendency is to impose realistic or punitive costs."

Case Background:

The couple got married in 2009. The child was born premature and had to undergo treatment in various hospitals. It was alleged that respondent No.3 (wife) had taken away the baby girl from the petitioner's custody on 05.10.2021 and since then the petitioner is not allowed to talk with the baby girl and respondent No.3 is not even showing her, despite the petitioner's repeated request.

Petitioners Arguments:

Advocate Anish Jose Antony for the petitioner contended that the writ petition in the form of Habeas Corpus is maintainable in view of the dictum of the Supreme Court in the case of Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others.

Moreover, in view of the provisions of the Juvenile Justice (Care & Protection) Act, 2015, the best interest of the child is of paramount consideration and should involve fulfilment of his/her basic rights and needs–socially, physically and emotionally for the overall development of the child.

Mere statement made by the 3rd respondent-wife on oath that the 4th respondent-child is in her safe custody since she is a natural mother of Respondent No.4, cannot be believed and the petitioner is not aware as to whether the child is alive or dead.

Wife opposed the plea:

Advocate Fayaz Sab for the respondent contended that the minor child is residing with her natural mother-respondent No.3 and the present writ petition in the form of Habeas Corpus is not maintainable. It was said petitioner is misusing the provisions of Article 226 of the Constitution of India by filing the present writ petition in the form of Habeas Corpus.

Court Findings

On going through the cases relied upon by the petitioner the court said,

"Admittedly in the present case, it is not in dispute that respondent No.4 is residing with respondent No.3 and it is not the case of the petitioner that respondent No.3 illegally detained respondent No.4 without any authority of law. It is the fact that the petitioner and respondent No.3 both are husband and wife and their child is in safe custody of respondent No.3. If any grievance against respondent No.3 with regard to the custody rights as alleged in the present writ petition, in all fairness, the petitioner could have filed a petition seeking custody of the child before the family court."

It added "Thereby, he is misusing the provisions of Article 226 of the Constitution of India, by filing the writ petition in the form of Habeas Corpus."

Further the court noted the petitioner has not produced any material documents to show that respondent No.3 (wife) has detained respondent No.4 illegally in violation of any court order, nor has he filed any petition seeking custody of respondent No.4 for custody rights.

It therefore opined that in the absence of any material documents produced, the present writ petition filed in the form of Habeas Corpus is nothing but abusing the process of law and also with a malafide intention to harass respondent No.3 and her daughter- Respondent No.4, which is impermissible.

It said, "In the absence of any orders passed by any of the Courts, the custody of the minor daughter with the mother, cannot be held to be unlawful. If the petitioner is really aggrieved, he has to invoke the provisions of Guardians and Wards Act, for the proper relief."

The court also noted that petitions for Habeas Corpus are filed for the person for whose release the petition is filed, must be in "detention". He must be under detention by the authorities or by any private individual. It is the "detention" legal or illegal which gives the cause of action for maintaining the writ of Habeas Corpus.

Following which it observed if the averments in the writ petition read as a whole do not disclose the detention, in other words, there is no allegation of illegal detention, the writ petition is liable to be rejected in limine.

Holding that the present petition is an attempt to overreach the Court and is nothing, but an attempt to mislead the police, the court opined,

"It is our experience that this type of frivolous writ petitions in recent days is on the rise. Because it is a Habeas Corpus writ petition and the personal liberty of a citizen is involved, this Court being the Constitutional Court has to reach out to the rescue of those innocent people. We are giving top priority to those cases. We are putting pressure on the Police to investigate and secure and release these persons. But we find from our experience that in most of the cases, there is no cause much less sufficient cause for the parties to approach this Court."

Case Title: GAURAV RAJ JAIN V. STATE OF KARNATAKA

Case No: WRIT PETITION (HC) NO.109/2021

Citation: 2022 LiveLaw (Kar) 28

Date of Order: 4TH DAY OF JANUARY, 2022

Appearance: Advocate ANISH JOSE ANTONY for petitioner; Advocate FAYAZ SAB, for R3, R4; Advocate THEJESH.P for R1,2

Click Here To Download Order