In Child Custody Matters, Writ Of Habeas Corpus Entertainable Only If It Is Established That Detention Of Minor Child Is Illegal & Without Authority Of Law: Allahabad HC
The Allahabad High Court observed that, in a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law.
A bench of Justice Yogendra Kumar Srivastava held, “In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.”
Advocate Brijesh Kumar Pandey appeared for the Petitioners and Advocate Divya Ojha appeared for the Respondents.
During the proceedings, it was revealed that petitioner 2 was living separately from respondent No. 3, and a complaint regarding the custody of petitioner No. 1 was filed by her. Respondent No. 3, who is the father of petitioner No. 1, expressed willingness to take back petitioner No. 2, but she was unwilling to return to her matrimonial home.
The Court noted the strained relationship between the parties and the existence of criminal cases, including an FIR filed by petitioner No. 2 and another filed by respondent No. 2.
In considering the habeas corpus petition for custody of a minor child, the Court emphasized the paramount consideration of the child's welfare. The Court added, “The role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.”
It highlighted that a writ of habeas corpus is entertainable only when the detention of the minor child is illegal and without legal authority. The Court, after examining the facts, discharged the rule nisi issued earlier and dismissed the habeas corpus petition. The Court said, “In a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum.”
The Court allowed petitioner No. 1 (corpus) to go with respondent No. 3 (his father) to the place from where he was brought, accompanied by a police officer for safety.
The Court clarified that its observations are prima facie in nature and do not prevent the parties from pursuing their claims for guardianship and custody in the appropriate forum.
Cause Title: Hasaan Raza & Anr. v. State of U.P. & Ors., [2024:AHC:16444]
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