The High Court has observed that the power of the High Court in granting a writ of Habeas Corpus 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.

In view of this, the Court dismissed a Habeas plea filed by the mother of a 5-year-old girl seeking minor's custody from her father (her husband) as the Court noted that the appropriate remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890.

The case in brief

Allegedly, Petitioner No.2 (Mother of the child) was being harassed by her husband and other private respondents, and in September 20202 she was driven out from the matrimonial home and her minor girl (corpus) was snatched by the private respondents.

Thereafter, she approached the High Court with her habeas plea submitting that since respondent no. 4 (Her Husband) is not treating the minor well and that she is under illegal detention of the respondents, therefore, she sought the minor's presence before the Court.

Court's order

Referring to several rulings of the Apex Court, the Court, at the outset, said that a habeas plea would be maintainable in child custody matters where detention by parents or others is found to be illegal and without any authority of law.

However, with regard to the facts of the case, the Court noted that the private respondents are none other than the biological father and grandparents of the minor child and therefore, it can not be said that the custody of the child with private respondents is unlawful.

Further, stressing that the proceedings in the of habeas corpus may not be used to examine the question of the custody of a child, the Court remarks thus:

"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/her welfare requires that the present custody should be changed and the child should be handed over in the care and custody of someone else."

Consequently, noting that a petition under Section 13-B Hindu Marriage Act has already been filed in the court for divorces, the Court observed that the matter relating to custody of the child during the pendency of the proceedings under the Hindu Marriage Act, 1955 HMA is governed in terms of the provisions contained under Section 26 thereof.

"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 might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible," the Court added.

Lastly, dismissing the plea, the court averred 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 forums.