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2021 SCC OnLine All 882 : (2022) 151 ALR 108 : (2022) 152 ALR
485 : ILR (2022) 1 All 1167
In the High Court of Allahabad
(BEFORE YOGENDRA KUMAR SRIVASTAVA, J.)
Sushil Kumar Tiwari and Others … Petitioners;
Versus
State of U.P. and Others … Respondents.
Habeas Corpus Writ Petition No. - 632 of 2021
Decided on December 6, 2021
Advocates who appeared in this case :
Counsel for Petitioner : - Maqsood Ahmad Beg, Naiyar Masroof
Siddiqui
Counsel for Respondent : - G.A.
The Order of the Court was delivered by
Y OGENDRA KUMAR SRIVASTAVA, J.:— Heard Sri. Maqsood Ahmad
Beg, learned counsel for the petitioners and Sri. Vinod Kant, learned
Additional Advocate General assisted by Sri. Arvind Kumar, learned
Additional Government Advocate appearing for the State respondents.
2. The petitioner no. 1 asserting himself to be the father of the
petitioner no. 2-corpus, has filed the present habeas corpus petition
alleging that the corpus is under illegal custody of his mother-
respondent no. 4.
3. Pleadings in the petition are to the effect that the marriage of
petitioner no. 1 was solemnized with respondent no. 4 on 09.06.2010
and the petitioner no. 2 was born on 23.08.2015 and that the petitioner
no. 1 and the respondent no. 4 are living separately for the past several
years. It is averred that the petitioner no. 1 has filed a divorce petition
and the respondent no. 4 has also instituted certain legal proceedings
against the petitioner no. 1. An application stated to have been filed
before the local police authorities some time in the year 2020, has been
appended along with the petition wherein it is stated that the petitioner
-corpus (stated to be of age about five years at that point of time) had
been taken away by his mother-respondent no. 4, about three years
earlier. Based on the aforestated facts, the present petition seeking a
writ of habeas corpus has been filed.
4. Sri. Vinod Kant, learned Additional Advocate General appearing
along with Sri. Arvind Kumar, learned Additional Government Advocate
for the State respondents, submits that instructions have been received
to the effect that criminal proceedings, pursuant to a complaint case
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instituted by the respondent no. 4, are pending, which fact has not
clearly been placed on record. It is further submitted that as per the
admitted facts, the petitioner no. 2-corpus being in the custody of his
biological mother since the time when he was an infant of about two
years of age, the same cannot be held to amount to illegal detention,
and accordingly the present petition seeking a writ of habeas corpus
would not be entertainable. Reliance has been placed upon recent
decisions of this Court in Rachhit Pandey (Minor) v. State of U.P.1,
2
Master Manan @ Arush v. State of U.P. , Krishnakant Pandey (Corpus)
v. State of U.P.3, Master Tarun @ Akchhat Kumar v. State of U.P.4,
5
Priyanshu (Minor) v. State of U.P. , Vahin Saxena (Minor Corpus) v.
State of U.P.6 and Reshu @ Nitya v. State of U.P.7
5. In order to appreciate the rival contentions, the ambit and scope
of exercise of powers for grant of a writ of habeas corpus in such
matters would be required to be adverted to.
6. The writ of habeas corpus is a prerogative writ and an
extraordinary remedy. It is writ of right and not a writ of course and
may be granted only on reasonable ground or probable cause being
shown, as held in Mohammad Ikram Hussain v. State of U.P.8 and Kanu
9
Sanyal v. District Magistrate Darjeeling .
7. The object and scope of a writ of habeas corpus in the context of a
claim relating to custody of a minor child fell for consideration in Sayed
10
Saleemuddin v. Dr. Rukhsana , and it was held that in a habeas
corpus petition seeking transfer of custody of a child from one parent to
the other, the principal consideration for the court would be to ascertain
whether the custody of the child can be said to be unlawful or illegal
and whether the welfare of the child requires that the present custody
should be changed. It was stated thus:—
“11. …it is clear that in an application seeking a writ of Habeas
Corpus for custody of minor children the principal consideration for
the Court is to ascertain whether the custody of the children can be
said to be unlawful or illegal and whether the welfare of the children
requires that present custody should be changed and the children
should be left in care and custody of somebody else. The principle is
well settled that in a matter of custody of a child the welfare of the
child is of paramount consideration of the Court…”
8. Taking a similar view in the case of Nithya Anand Raghvan v.
11
State (NCT of Delhi) , it was held that the principal duty of the court in
such matters is to ascertain whether the custody of the child is unlawful
and illegal and whether the welfare of the child requires that his
present custody should be changed and the child be handed over to the
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care and custody of any other person. The relevant observations made
in the judgment are as follows:—
“44. The present appeal emanates from a petition seeking a writ
of habeas corpus for the production and custody of a minor child.
This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2
SCC 674, has held that habeas corpus was essentially a procedural
writ dealing with machinery of justice. The object underlying the writ
was to secure the release of a person who is illegally deprived of his
liberty. The writ of habeas corpus is a command addressed to the
person who is alleged to have another in unlawful custody, requiring
him to produce the body of such person before the court. On
production of the person before the court, the circumstances in
which the custody of the person concerned has been detained can be
inquired into by the court and upon due inquiry into the alleged
unlawful restraint pass appropriate direction as may be deemed just
and proper. The High Court in such proceedings conducts an inquiry
for immediate determination of the right of the person's freedom and
his release when the detention is found to be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation
to the custody of a minor child, this Court in Sayed Saleemuddin v.
Rukhsana, (2001) 5 SCC 247, has held that the principal duty of the
court is to ascertain whether the custody of child is unlawful or
illegal and whether the welfare of the child requires that his present
custody should be changed and the child be handed over to the care
and custody of any other person. While doing so, the paramount
consideration must be about the welfare of the child. In Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, it is held that in
such cases the matter must be decided not by reference to the legal
rights of the parties but on the sole and predominant criterion of
what would best serve the interests and welfare of the minor. The
role of the High Court in examining the cases of custody of a minor is
on the touchstone of principle of parens patriae jurisdiction, as the
minor is within the jurisdiction of the Court [see Paul Mohinder
Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699, relied
upon by the appellant]. It is not necessary to multiply the
authorities on this proposition.
46. The High Court while dealing with the petition for issuance of
a writ of habeas corpus concerning a minor child, in a given case,
may direct return of the child or decline to change the custody of the
child keeping in mind all the attending facts and circumstances
including the settled legal position referred to above. Once again, we
may hasten to add that the decision of the court, in each case, must
depend on the totality of the facts and circumstances of the case
brought before it whilst considering the welfare of the child which is
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of paramount consideration. The order of the foreign court must yield
to the welfare of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of the directions given
by the foreign court against a person within its jurisdiction and
convert that jurisdiction into that of an executing court. Indubitably,
the writ petitioner can take recourse to such other remedy as may be
permissible in law for enforcement of the order passed by the foreign
court or to resort to any other proceedings as may be permissible in
law before the Indian Court for the custody of the child, if so
advised.
47. In a habeas corpus petition as aforesaid, the High Court must
examine at the threshold whether the minor is in lawful or unlawful
custody of another person (private respondent named in the writ
petition). For considering that issue, in a case such as the present
one, it is enough to note that the private respondent was none other
than the natural guardian of the minor being her biological mother.
Once that fact is ascertained, it can be presumed that the custody of
the minor with his/her mother is lawful. In such a case, only in
exceptionable situation, the custody of the minor (girl child) may be
ordered to be taken away from her mother for being given to any
other person including the husband (father of the child), in exercise
of writ jurisdiction. Instead, the other parent can be asked to resort
to a substantive prescribed remedy for getting custody of the child.”
9. The question of maintainability of a habeas corpus petition under
Article 226 of the Constitution of India for custody of a minor was
12
examined in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari , and it
was held that the petition would be maintainable where detention by
parents or others is found to be illegal and without any authority of law
and the extraordinary remedy of a prerogative writ of habeas corpus
can be availed in exceptional cases where ordinary remedy provided by
the law is either unavailable or ineffective. The observations made in
the judgment in this regard are as follows:—
“14. Writ of habeas corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of
immediate release from an illegal or improper detention. The writ
also extends its influence to restore the custody of a minor to his
guardian when wrongfully deprived of it. 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. For restoration of the custody of
a minor from a person who according to the personal law, is not his
legal or natural guardian, in appropriate cases, the writ court has
jurisdiction.
xxx
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19. 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.
20. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and Wards
Act as the case may be. In cases arising out of the proceedings
under the Guardians and Wards Act, the jurisdiction of the court is
determined by whether the minor ordinarily resides within the area
on which the court exercises such jurisdiction. 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.”
10. The exercise of the extraordinary jurisdiction for issuance of a
writ of habeas corpus would, therefore, be seen to be dependent on the
jurisdictional fact where the applicant establishes a prima facie case
that the detention is unlawful. It is only where the aforementioned
jurisdictional fact is established that the applicant would become
entitled to the writ as of right.
11. 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.
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12. Proceedings in the nature of habeas corpus may not be used to
examine the question of the custody of a child. The prerogative writ of
habeas corpus, is in the nature of extraordinary remedy, and the writ is
issued, where in the circumstances of a particular case, the ordinary
remedy provided under law is either not available or is ineffective. The
power of the High Court, in granting a writ, in child custody matters,
may be invoked only in cases where the detention of a minor is by a
person who is not entitled to his/her legal custody.
13. 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.
14. In a given case, while dealing with a petition for issuance of a
writ of habeas corpus concerning a minor child, directions may be
issued for return of the child or the Court may decline to change the
custody of the child, keeping in view all the attending facts and
circumstances and taking into view the totality of the facts and
circumstances of the case brought before the Court; the welfare of the
child being the paramount consideration.
15. In the facts of the present case it is undisputed that the
petitioner no. 2, presently of age about six years, is stated to be under
the exclusive care and custody of his mother-respondent no. 4, since
the time when he was an infant of about two years of age. It is also
admitted position that the petitioner no. 1 and the respondent no. 4 are
living separately for quite some time and also certain other legal cases
are pending between the parties.
16. The subject matter relating to custody of children during the
pendency of the proceedings under the Hindu Marriage Act, 195513 is
governed in terms of the provisions contained under Section 26 thereof.
The aforesaid section applies to “any proceeding” under the HMA and it
gives power to the court to make provisions in regard to : (i) custody,
(ii) maintenance, and (iii) education of minor children. For this purpose
the court may make such provisions in the decree as it may deem just
and proper and it may also pass interim orders during the pendency of
the proceedings and all such orders even after passing of the decree.
17. The provisions under Section 26 of the HMA were considered in
Gaurav Nagpal v. Sumedha Nagpal14, and it was held as follows:—
“Section 26 of the Hindu Marriage Act, 1955 provides for custody
of children and declares that in any proceeding under the said Act,
the Court could make, from time to time, such interim orders as it
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might deem just and proper with respect to custody, maintenance
and education of minor children, consistently with their wishes,
wherever possible.”
18. In a petition for a writ of habeas corpus concerning a minor
child, the Court, in a given case, may direct to change the custody of
the child or decline the same keeping in view the attending facts and
circumstances. For the said purpose it would be required to examine
whether the custody of the minor with the private respondent, who is
named in the petition, is lawful or unlawful. In the present case, the
private respondent is none other than the biological mother of the
minor child. This being the fact, it may be presumed that the custody
of the child with his mother is not unlawful. It would only be in an
exceptional situation that the custody of a minor may be directed to be
taken away from the mother for being given to any other person-
including father of the child, in exercise of writ jurisdiction. This would
be so also for the reason that the other parent, in the present case, the
father, can take resort to the substantive statutory remedy in respect of
his claim regarding custody of the child.
19. In a child custody matter, a writ of habeas corpus would be
entertainable where it is established that the detention of the minor
child by the parent or others 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 remedy
ordinarily in such matters would lie under the Hindu Minority and
15 16
Guardianship Act, 1956 or the Guardians and Wards Act, 1890 , as
the case may be.
20. Counsel for the petitioners has not disputed the aforesaid legal
and factual position and the only grievance, which is sought to be
raised, is with regard to a claim for visitation rights on behalf of the
father.
21. The contention which has been sought to be raised by the
counsel for the petitioner with regard to the father's claim for custody
and/or visitation rights, are matters which are to be agitated in
appropriate proceedings.
22. Having regard to the aforesaid, this Court is not inclined to
exercise its extraordinary jurisdiction to entertain the present petition
seeking a writ of habeas corpus.
23. The petition stands dismissed accordingly.
———
1
2021 (2) ADJ 320
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2
2021 (5) ADJ 317
3
(2021) 2 AWC 1053 All
4
2021 (6) ADJ 23
5
2021 (7) ADJ 438
6
2021 SCC OnLine All 593
7
Habeas Corpus Writ Petition No. 9 of 2020, decided on 22.10.2021
8
AIR 1964 SC 1625
9
(1973) 2 SCC 674
10
(2001) 5 SCC 247
11
(2017) 8 SCC 454
12
(2019) 7 SCC 42
13
HMA
14
(2009) 1 SCC 42
15
HMGA
16
GWA
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