Introduction:
The present article discusses the law on the maintainability of writ petition for habeas Corpus, under Article 226 of the Indian Constitution, with respect to the Child Custody Disputes.The HINDU MINORITY AND GUARDIANSHIP ACT, 1956 (hereinafter 1956 Act) and the GUARDIANS AND WARDS ACT, 1890 (hereinafter 1890 Act), primarily govern the law relating to Guardianship and Custody of a minor child. When no statutory remedy is available or if no efficacious remedy is available, the aggrieved party can approach the High Courts or the Supreme Court under Article 226 or Article 32 of the Indian Constitution, respectively. The child custody disputerequires serious consideration of the welfare of the child because in the haste to protect the right of either or both parents the ultimate welfare of the child cannot prejudice. As the Supreme Court[1] observed that minor children are not chattel or toys of their parents and therefore the rights of the parents must yield to the consideration of best interest and welfare of the child.
Statutory Provisions:
Section 3 of the 1956 Act defines the scope of application of the Act, i.e. it applies to all Hindus and provides a wider definition to the word ‘Hindu’ which includes everyone other than any person who is Muslim, Christian, Jew, or Parsi, or if it is proved that such person would not be governed by this Act having regards to the customs and usages.
It deals with the rights of the minor child, defined under section 4(a) to mean a person who has not completed the age of eighteen years; and that of the guardians, defined under section 4(b) to mean a person having care of either or both the person of minor or/and his property, and such person includes i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards.
Section 6 of the 1956 Act provides that the natural guardian for a legitimate child is the father, and after him, the mother. For an illegitimate child, it is the mother, and after her, the father of the minor child. Further, section 13 of the 1956 Act is important because it provides that the welfare of the child shall be of paramount consideration in deciding the matter of custody of the child, and this shall override the rights of the parties’ seeking custody.
The Supreme Court[2] has allowed maternal grandmother, who is not a natural guardian, to retain the minor child’s custody whom she had looked after and taken care of from the very infancy of the child. The Court observed that the child must have form an emotional bond and therefore it is in interest of the child to be in the maternal grandmother’s custody against the respondent father who is natural guardian. This is the position under the 1956 Act. Therefore, for seeking custody of a Hindu minor child, an application generally under the 1956 Act can be preferred before the regular civil/family court.
Under the 1890 Act, section 25 provides that if a minor leaves or is removed from the guardian’s custody, then the court if it finds it necessary for the welfare of such minor may order the minor to be returned back into such guardian’s custody and the court can even order the arrest of minor child for putting such minor back into the Guardian’s custody. Further, section 9 of the 1890 Act confers the jurisdiction for entertaining custody disputes on the District Court and also on the High Court, but only in the exercise of its ordinary original jurisdiction.
Based on the analysis of these two statutes, applications can be preferred before regular civil/family court for the purpose of seeking or reserving the custody of minor child. These applications are then entertained like a civil suit with parties given the opportunity to lead evidence and detailed inquiry is carried out.
Remedy of Writ of Habeas Corpus:
The other remedy that is available is a Habeas Corpus Writ Petition. Generally, the rule for invoking Article 226 or Article 32 of the Indian Constitution is absence of any other efficacious remedy with the aggrieved party for the protection of their fundamental rights guaranteed by Part III, and the High Courts under Article 226 have broader powers, limited not only to the enforcement of fundamental rights but also for any other constitutional rights.
The High Courts, in exercise of the power conferred by Article 226 of the Indian Constitution, can issue various types or forms of writs which can be in the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibitio. The purpose of the petition determines the nature of the writ to be issued.
The writ of Habeas Corpus literally means to have the body, and it invokes the Constitutional Courts’ inherent jurisdiction to inquire into the illegal detention/imprisonment of any person. Therefore, the trend as reflected in plethora of cases demonstrates that the writ of Habeas Corpus is generally issued against the State machinery. Chief Justice John Marshall of the American Supreme Court has very aptly termed this writ of Habeas Corpus as the ‘Great Writ of Liberty’, demonstrating its importance in any civilized society.
The object of the writ of habeas corpus is to set at liberty someone who is illegally detained. It is understood as the command of sovereign requiring the production of the person, and on such production, an inquiry is conducted by the High Court into the rights of such person and the legality of such detention.[3]This writ is also issued in child custody disputes, even though the Child custody disputes are governed by the above-mentioned special statutes with an elaborative procedure been laid out.
In the case of Gohar Begam v/s Suggi[4]where the appellant had preferred an application under Section 491[5] of the Criminal Procedure Code 1898 before the Bombay High Court seeking issuance of Habeas Corpus for recovery of custody of her child from her mother’s sister, the high court had rejected the application observing that the matter would require going into the merits for answering certain questions and the court under section 491 cannot go into this aspect, thus the High Court directed the appellants to approach the civil court under the 1890Act.
The Supreme Court in appeal held that under the Mohammedan law, the mother is the guardian of her illegitimate daughter, and the refusal of the respondent to return the custody of the ward tantamount to illegal detention of the child within the meaning of section 491 of the Criminal Procedure Code.
The court relied on the ratio in Queen v/s Clarke (1857), where it was observed that a child is supposed to be unlawfully imprisoned when such a child is unlawfully detained from the custody of the Guardian and is said to be set at liberty upon the child’s return to such guardian.
The Supreme court observed that merely because the 1890 Act provides appellants with the right to initiate proceedings, seeking custody of child, before the Civil Court will not by itself prevent the appellant from the invoking the powers of the court under section 491. The Courts in England have issued the writ of habeas corpus and this position applies equally in Habeas Corpus cases in India.
In Tejaswini Gaud &ors v/s Shekhar Tewari &ors (2019), the respondent’s Habeas Corpus petition was allowed by the High Court. The Supreme Court, while dismissing the appeal against the High Court’s Judgment, observed that habeas corpus is a prerogative process which extends the benefit of reserving immediate release from illegal detention. In child custody disputes, if the minor child is in the custody of a person who is not legally entitled to such custody, then it is considered as illegal detention.
This child custody disputes are ordinarily to be remedied by the 1956 Act or 1890 Act, and the writ jurisdiction can be invoked in cases where the custody of the child is illegal or without any authority of law. There is a significant distinction between the nature of the proceedings. In writ jurisdiction, the proceedings are conducted in a summary manner primarily based out on Affidavits, and if the court is of the opinion that it is necessary to have a detailed enquiry to determine the rights of the parties, then the court may direct the parties to approach civil court.
For issuance of writ of Habeas Corpus, establishing illegal detention is indispensable. It was held that when the custody of the ward was refused to be handed over to the motherwho is the natural and legal guardian, further continuation of such custody by the respondents becomes unlawful, which tantamount to illegal detention.[6]Such an unlawful act may even amount to the offence of kidnapping, punishable under Section 361 of the Indian Penal Code. Therefore, when the custody of the child is illegal, it cannot be said that the writ court cannot interfere.
In Gautam Kumar Das v/s NCT of Delhi &ors[7], where the Appellant’s wife (minor child’s mother) died during COVID-19, and the custody of the child was with the sisters of the deceased wife because the child was of a very tender age with the need to have motherly woman to take care. Thus, when the appellant asked for returning the minor child’s custody the sisters denied on the pretext that the child needs to be under woman’s care.Subsequently, the appellant remarried and requested the custody of the child to be returned back to him, but the sisters of the deceased mother refused.
The Court, while allowing the petition for writ of habeas corpus, observed that there is no any hard and fast rule so far as the maintainability of Habeas Corpus petition with respect to child custody dispute is concerned. The exercise of power under Article 226 of the Indian Constitution for allowing the Habeas Corpus Petition is totally dependent on the facts and circumstances of each case but the petitioner shall establish jurisdictional fact. In a habeas corpus petition for custody of a child, the court exercises extraordinary jurisdiction, and such exercise is contingent on the petitioner establishing a prima facie case that detention of a minor child is illegal, this fact is called a Jurisdictional fact.[8] The Jurisdictional fact is the fact which enables the court to invoke its plenary powers which are ancillary to its jurisdiction, it can also be termed as a condition precedent for the court to exercise its powers.
In a Habeas Corpus petition, the court exercises its inherent jurisdiction, that is, the equity jurisdiction which is independent of any statute, with such court having plenary power to make equitable orders. Whereas the courts hearing applications or petitions under the 1956 Act or the 1890 Act are exercising statutory jurisdiction with those limited powers as enumerated in the statute. In child custody disputes the constitutional courtsexercise the parens patria jurisdiction of the State where the court though not is bound is expected to give due consideration to the health, contentment, intellectual development, and ordinary comfort which is for the protection as well as for promoting the best interests and welfare of the child.
There are varied factors such as quality education, a nurturing family environment, healthy worldly experiences, provision of basic amenities of life, meeting of financial requirements, access to a friendly social system to imparting of spiritual and cultural learnings which are to be considered while determining the question of best interests of the minor child these above factors are illustrative and not exhaustive.[9]
The view taken by Lindley L.J. that the welfare of a child should not only be measured by money or physical welfare, but the word ‘welfare’ should be given the widest meaning, this is affirmed by the hon’ble Supreme Court of India.
Hon’ble Justice Goel of Punjab and Haryana High Court[10] had aptly summarised that the test for allowing a habeas corpus writ petition is twofold: first, the court has to determine whether the present custody of the minor child is illegal or unlawful, and second, whether the welfare of such child necessitates a change in existing custodial arrangement. As the court exercises parens patriae jurisdiction, it may relax even the condition as to jurisdictional fact i.e., whether the present custody of the child is illegal or not. This can be done if the petitioner, with the help of cogent material, proves in aunambiguous manner that the custody of the minor with the respondent is demonstrably inconsistent with the ultimate welfare of the child. The court further cautioned that such power shall be exercised with utmost judicial restraint, ensuring that the constitutional court does not take over the jurisdiction of courts having endowed with it by virtue of a statute.
Conclusion:
The ordinary remedy in child custody cases will be to prefer a petition either under the Hindu Minority and Guardians Act 1956 or the Guardians and Wards Act 1890, which provides for both the substantial as well procedural aspects of the custody disputes. The Courts in such petitions have a larger scope of inquiry, given their ability to record material evidence, conduct child counselling, etc.
The scope of inquiry in Habeas Corpus writ petition is summary where on the basis of affidavits the petitions are decided though no provision bounds the Constitutional Courts’ power and scope of inquiry. But generally, based on the precedents, it seen that if constitutional court is of the opinion that a detailed inquiry is required then in such cases the court refrains from allowing such petition extending liberty to the parties to approach concerned court as per above mentioned statutes. This is seen in the recent judgment, where the Bombay High Court[11] dismissed a habeas corpus petition observing that the respondent father is a natural guardian and thus child cannot be said to be in illegally detained. The court directed the petitioner mother to approach appropriate court under the above-mentioned statutes.
[1]Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840
[2]Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC 322,
[3]Kanu Sanyal v/s District Magistrate, Darjeeling(1973) 2 SCC 674
[4]AIR 1960 SC 93
[5]Section 491 of 1898 CrPC empowers the High Court to issues Directions of the nature of habeas Corpus.
[6]Manju Malini Seshachalam v/s Vijay Thirugnanam2018 SCC OnLine Kar 621
[7]2024 INSC 610
[8]Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu and Others (2023) 12 SCC 472
[9]Neethu B. Vs. Rajesh Kumar2025 SCC OnLine SC 1435
[10]Veerpal Kaur v/s State of Punjab2025 SCC OnLine P&H 6553
[11]Shahna Garg Advani v/s The State of Maharashtra &AnrCriminal Writ Petition (ST) No. 10982 Of 2024
Author Name- Rachcha Harshal Abhijit, BA.LL.B, 5th Year (2021-26)
