Courts Cannot Treat Child As Movable Property When Deciding Habeas Corpus Petitions; Must Act On Humanitarian Considerations: Supreme Court

The Court was hearing a Criminal Appeal arising from a dispute about custody of the child and considered the question whether the High Court was right to change the child’s custody, given her young age at the time.

The bench of Justice Abhay S Oka and Justice Augustine George Masih observed, “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.”

Brief Facts-

In the present case, after the child's mother died under suspicious circumstances, the father and paternal grandparents filed a Writ of Habeas Corpus alleging that the maternal family had taken the child without consent. The father had been arrested in connection with the mother's death but was later released on bail. The High Court ordered the child’s custody to be returned to the father and his family. The Supreme Court stayed this order and allowed the father to seek custody through the Guardians and Wards Act.

The Court said that the High Court has not dealt with and considered the issue of the welfare of the child. The High Court has disturbed the child's custody based only on the father's right as a natural guardian.

The Court observed, “Only in substantive proceedings under the GW Act can the appropriate Court decide the issue of the child custody and guardianship. 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 Court also summarized the principles to be considered while deciding such habeas corpus petitions:

-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.

The Court directed the appellants to give access to the father and paternal grandparents of the child to meet the child once a fortnight.

The Court said that the access can be provided in the office of the secretary of the District Legal Service Authority so that the secretary can supervise the access.

The Court set aside the impugned judgment and order.

Accordingly, the Court partly allowed the Appeal.