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In a recent judgment sought for the custody of child against the father, Court observed that unless the custody or detention can be proved ‘illegal’, a Writ of Habeas Corpus, as a matter of Right, cannot be issued.

Justice Yogendra Kumar Srivastava, while dismissing the present petition, observed, “… In an application seeking a writ of Habeas Corpus for custody of a 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 the welfare of the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.”

Present petition was moved by mother of the minor child aged around 7 year, contending that as per the mutual agreement between the spouses, the present custody with the father at Ajmer, is illegal and unlawful.

Placing reliance on Mohammad Ikram Hussain v. State of UP, AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674, Court observed, “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.”

Addressing the circumstances of the present case, Court drew reference from Nithya Anand Raghvan v. State (NCT of Delhi) and another, (2017) 8 SCC 454, wherein it was held, “… in an application seeking writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody 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.”

With respect to the maintainability of Habeas Corpus petition seeking custody of child and adequacy of relief under other Acts, Court considered the findings of Tejaswini Gaud v. Shekhar Jagdish Prasad, (2019) 7 SCC 42; “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 maybe. In cases arising out of the proceedings under the Guardians 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 nature. What is important is the welfare of the Child.”

Narrowing down to the facts of the present case, Court noted that, “…it is not the case of either party that the child was forcibly taken away by the father from the custody of the mother. The pleadings and the material indicates the existence of a dispute with regards to handing over the custody of the child to the mother, pursuant to an agreement between the parties.”

It was held that the custody of child with the father, in view of the provisions under Section 6(a), Hindu Minority and Guardianship Act, 1956 cannot be said to be prima facie illegal. Accordingly, the Court found no reason to exercise its extraordinary jurisdiction in the present matter.

Case Title: Master Manan v. State of UP | WP No. 1026 of 2019

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