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The Allahabad High Court recently dismissed a woman’s plea seeking handover of her daughter’s custody under the writ of habeas corpus. Court said that in child custody matters, a writ of Habeas Corpus may be invoked only when minor’s detention is by a person, who is not entitled to his/her legal custody.

The Bench of Justice Raj Beer Singh further clarified that “In matter of custody of a child, 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.”

Additionally, court pointed out that in such cases the appropriate remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890, as the case may be.

Court remarked, “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.”

Further highlighting that the woman and her husband had already filed a petition under Section 13-B Hindu Marriage Act in the court for divorce, Court said that

“In a writ court, where rights are determined on the basis of affidavits and that in a case where the court is of a view that a detailed inquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum.”

Accordingly, court dismissed woman’s petition noting that it was not inclined to exercise its extraordinary jurisdiction to entertain her petition seeking a writ of habeas corpus.

The case in brief

The petitioner woman had got married in the year 2014. A daughter was born to her and her husband in 2016. Allegedly, the woman used to be harassed by her husband and his relatives.

In the year 2020, allegedly, following multiple matrimonial disputes, the woman was kicked out of the house and her minor girl (corpus) was snatched from her by her husband and his parents.

Following this, the woman had approached the High Court with her habeas plea in 2020 submitting that her husband was not treating their daughter well and that the daughter was under his and his parents’ illegal detention, therefore, they should be directed to handover the child to her.

Case Title: Shradha Kannaujia (Minor) and Another v. State of U.P. and 5 Others