The Allahabad High Court has ruled that mere allegation that the father has forcibly taken the minors from the custody of the mother, even if accepted on its face value, would not lead to the conclusion that the minors are in illegal detention. The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract any criminality. Such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition.
Accordingly, the High Court denied the remedy of habeas corpus, emphasising that it cannot be permitted to be used as a substitute for the remedies available under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, where a detailed adjudication on the issue of custody, guided by the welfare of the child, can appropriately be undertaken.
A Single Judge Bench of Justice Anil Kumar-X observed that habeas corpus in child custody matters is an extraordinary remedy and is maintainable only where the detention of the minor is illegal and without authority of law. Ordinarily, custody disputes are to be adjudicated under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, particularly because a writ court proceeds summarily on affidavits, whereas custody disputes often require detailed inquiry guided by the welfare of the child.
The Bench examined Section 361 of the Indian Penal Code and held that kidnapping from lawful guardianship is attracted only where a minor is taken out of the keeping of a lawful guardian by a person who is not himself a lawful guardian. Read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 4(2) of the Guardians and Wards Act, 1890, the Court noted that the father is recognized as a natural guardian and that both parents have legally recognized status in relation to the minor; therefore, a custody dispute between them is essentially civil in nature.
The Bench observed that even if the allegation that the father forcibly took the minors from the mother is accepted on its face, that by itself would not establish illegal detention. The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract criminality, unless the act was in violation of a legal order or prohibition.
Further, the Bench found that the minors, both above five years of age, had been residing with the father since 2022 and no exceptional or extraordinary circumstance had been shown to establish that their custody was illegal or detrimental. The Bench therefore held that habeas corpus could not be used as a substitute for remedies under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, and dismissed the petition as not maintainable.
Briefly, the petitioner no. 1 had married respondent no. 4 on February 07, 2010, and two children were born from the wedlock, namely Devansh, aged about 14 years, and Awani, aged about 10 years. It was alleged that after matrimonial discord, petitioner no. 1 was driven out of her matrimonial home, and on June 04, 2022, respondent no. 4 allegedly came to her parental home and forcibly took away both the minors at gunpoint, after which they remained in his custody. The petitioners contended that despite approaching various forums, no effective action was taken, and therefore custody of the minors should be restored through habeas corpus proceedings.
The respondent-State and respondent no. 4 opposed the petition on the ground that the minors had been residing with the father since 2022, that no proceedings had been initiated under the Guardian and Wards Act, and that the proper remedy was before the competent Family Court rather than in a writ petition under Article 226 of the Constitution of India.
Appearances:
Advocates Pradeep Kumar Singh and Rahul Shukla, for the Petitioner
Advocate Amit Kumar Chaudhary, for the Respondent
