Summary
The Supreme Court set aside a habeas corpus order that had transferred custody of a very young child from her maternal aunts to her father and paternal grandparents solely on the father's right as natural guardian, holding that the child's welfare is the paramount consideration even in habeas corpus and that, on the facts, custody could not be disturbed under Article 226; it left custody to proceedings under the Guardians and Wards Act, 1890 and ordered supervised access for the father and grandparents.
Issues
- Whether the High Court was justified in exercising habeas corpus jurisdiction under Article 226 to transfer custody of a child of about seventeen months from her maternal aunts, with whom she had lived since her mother's death, to her father and paternal grandparents.
- Whether custody of a minor can be decided in habeas corpus on the legal rights of the natural guardian without considering the child's welfare.
Provisions considered
- Article 226, Constitution of IndiaThe Court held that habeas corpus is an extraordinary, discretionary remedy; even if custody is found illegal, the High Court may decline to act if disturbing custody would not be in the minor's welfare, and on these facts discretion could not have been exercised to disturb the appellants' custody. (¶¶ 6, 10, 14)
- Proceedings for guardianship and custody, Guardians and Wards Act, 1890The Court held that only in substantive proceedings under this Act could custody and guardianship be decided, since the Civil or Family Court can interact with the child, record evidence, appoint experts and monitor access; it directed the appellants to file such a petition. (¶¶ 10, 12, 14)
Held
- A writ of habeas corpus is a prerogative, extraordinary and discretionary remedy; the High Court may decline to exercise jurisdiction even where custody is illegal if disturbing it at that stage would not serve the minor's welfare, and in custody matters the welfare of the minor is the only paramount consideration, overriding the parties' rights, including in habeas corpus. (¶ 6)
- The High Court erred in disturbing custody solely on the father's right as natural guardian without considering the child's welfare; a court cannot treat a child as movable property or decide such issues mechanically, and must act on humanitarian considerations and the parens patriae doctrine. (¶¶ 8, 9)
- Given the child's tender age, that she had lived with the appellants since she was eleven months old, had not seen her father and grandparents for over a year, and no one alleged she was not being properly cared for, custody could not be disturbed in Article 226 proceedings; the question was for the competent court under the Guardians and Wards Act. (¶¶ 10, 11)
- Whether or not the father is entitled to custody, he is entitled to access, and it is in the child's best interest to know her father and grandparents; custody orders are never final. (¶¶ 11, 12)
- The writ petition was dismissed not on merits but because discretion under Article 226 could not have been exercised to disturb custody at that stage. (¶ 14)
Result
Appeal partly allowed; High Court judgment set aside and the habeas corpus petition dismissed (not on merits); father and paternal grandparents given fortnightly supervised access at the District Legal Services Authority office, Panna, with a child psychologist or psychiatrist present (at the appellants' cost if privately engaged), for four months; appellants to file a guardianship and custody petition under the Guardians and Wards Act within two months, any petition by the father or grandparents to be heard with it; no costs.