“When child is in custody of one of the parents, writ of Habeas Corpus is maintainable” – Karnataka HC

“When child is in custody of one of the parents, writ of Habeas Corpus is maintainable” – Karnataka HC

Recently the Division Bench comprising Hon’ble Mr. Justice Alok Aradhe and Hon’ble Mr. Justice Anant Ramanath Hegde of Hon’ble Karnataka High Court while allowing the writ of Habeas Corpus filed by the father of the child to seek custody from her mother, placed reliance on Hon’ble Supreme Court observations in TEJASWINI GAUD AND OTHRES VS. SHEKHAR JAGDISH PRASAD TIWARI AND OTHERS’, (2019) 7 SCC 42, ‘YASHITA SAHU VS. STATE OF RAJASTHAN AND OTHERS’, (2020) 3 SCC 67 and ‘RAJESHWARI CHANDRASEKAR GANESH VS. STATE OF TAMIL NADU AND OTHERS’, 2022 SCC ONLINE SC 885 and held that when the child is in custody of one of the parents, a writ of habeas corpus is maintainable and directed the mother to hand over the custody of child to father.

BRIEF FACTS OF THE CASE

The petitioner who is the father of the daughter, filed a petition under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act’ for short), which was allowed by the Family Court vide judgment and decree dated 03.03.2022 and Respondent / mother was directed to handover the custody of the minor child Mayra Giri aged about 7 years to the custody of the petitioner within one month from the date of the order. This order was challenged before Hon’ble HC and the petition got dismissed by upholding the order passed by learned Family Court. Mother challenged the High Court order before Hon’ble SC and Hon’ble SC also dismissed the SLP filed by the mother. However, the custody of child was not handed over to the father. He again approached Hon’ble High Court through the present petition and Hon’ble Court issued Non-bailable Warrant against the mother. Mother challenged that also before Hon’ble SC and again her plea got dismissed. She finally presented herself and her daughter before the court.

CONTENTION OF PETITIONER

It was contended at the Bar that despite dismissal of the Special Leave Petition, the custody of the child has not been handed over to the petitioner who is legally entitled to the custody of the daughter. It is further submitted that the child is in illegal custody of the wife as the wife is retaining the custody of the child in contravention of the judgments of the courts. It is further submitted that in the fact situation of the case, a writ of habeas corpus is maintainable and placed reliance on aforesaid judgments.

CONTENTION OF RESPONDENT

Learned counsel for the wife at the outset fairly submitted that the parties are bound to comply with the orders of the courts. It is however, pointed out that against the judgment dated 29.03.2023 passed in SLP No.4869/2023, a review petition has been filed before Hon’ble Supreme Court. It is further submitted that the daughter is not in illegal custody. It is contended that the wife had left the petitioner when the daughter was 3 years of age and now after a period of 5 years, the petitioner is claiming the custody of the daughter. It is urged that the proceedings have been initiated with a view to harass the wife and her father. It is also pointed out that the amount of maintenance is not paid to the wife and for execution of the judgment passed by the family court, the execution proceedings have been initiated. Therefore, no interference is called for in this proceeding.

HON’BLE COURT’s OBSERVATIONS

Hon’ble Court while relying and quoting the observation made in the case of TEJASWINI GAUD AND OTHERS supra observed that :-

“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.”

He further relied on RAJESWARI CHANDRASEKAR GANESH supra, wherein the Hon’ble SC has held that:-

“The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child.”

Lastly, the Hon’ble court allowed the writ petitioner and issued directions to Commissioner of Police, Bangalore to take coercive action and also initiate the proceedings of Contempt in case of failure to comply with the present order.

Case title :- Dr. Rajeev Giri Vs. State of Karanataka & ors.

Case no. :- W.P.H.C. NO.30 OF 2023

Order date :- 07.06.2023