Read Time: 13 minutes

Synopsis

The Supreme Court recently observed that when the court deals with a habeas corpus plea regarding a minor, it cannot treat the child as a movable property and transfer custody without even considering its impact on the kid.

"Such issues cannot be decided mechanically. The court has to act based on humanitarian considerations. After all, the court cannot ignore the doctrine of parens patriae," a bench of Justices Abhay S Oka and Augustine George Masih said.

Court partly allowed an appeal against the Madhya Pradesh High Court's order directing for handing over the custody of a female child, presently aged two years and seven months, from that of her deceased mother's three sisters to her father and paternal grandparents.

"We believe that considering the peculiar facts of the case and the child's tender age, this is not a case where custody of the child can be disturbed in a petition under Article 226 of the Constitution. Only in substantive proceedings under the Guardians and Wards Act, 1890 can the appropriate court decide the issue of the child custody and guardianship. Regular Civil/Family court dealing with child custody cases is in an advantageous position. The court can frequently interact with the child," the bench said.

The mother of the child died on December 27, 2022 by hanging at Indore. When her father was busy in post-mortem formalities, the child was taken away from her mother's sisters.

Her father was arrested on February 18, 2023, for offences punishable under Sections 304-B and 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. He was released on bail on filing of charge sheet on April 19, 2023.

On a habeas corpus petition, the high court's division bench on June 23, 2023, directed for handing over the child's custody to the father and her paternal grandparents. On July 7, 2023, the apex court stayed the high court's order.

The appellants' counsel contended that the high court had ordered the child's custody to be disturbed based only on the legal rights of the child's father and grandparents, without considering what was in the best interests of the minor and her tender age.

The child's father said he and his parents resided together and, therefore, were in a position to take the best possible care of the child. He relied upon several judgments of the top court, including Gautam Kumar Das Vs NCT of Delhi & Others (2024).

After hearing the submissions, the bench said it was apparent that the high court had not dealt with and considered the issue of the welfare of the child. The high court has disturbed the child's custody based only on the father's right as a natural guardian, it noted.

The court noted the high court was dealing with the custody of the child, whose age at that time was one year and five months. The child had been in custody of her mother's sisters since the tender age of 11 months after her mother died. The child, at present also, was in the custody of the maternal aunts.

The bench felt that at the present stage, it was very difficult to decide whether the welfare of the minor child required custody of the maternal aunts to be disturbed.

The child has not seen the father and grandparents for over a year. At the tender age of two years and seven months, if custody of the child is immediately transferred to the father and grandparents, the child will become miserable as the child has not met them for a considerably long time. Moreover, even the contesting respondents (father and grandparents) have not alleged that the child is not being looked after properly by the appellants, court highlighted.

"Whether the father is entitled to custody or not is a matter to be decided by a competent court, but surely, even assuming that the father is not entitled to custody, at this stage, he is entitled to have access to meet the child. It is in the child's best interest that she knows her father and grandparents and remains with them for some time to begin with," the bench said.

Court permitted the appellants or any of them to apply for custody to the regular court under the Guardian and Wards Act.

Even in the petition filed by the appellants, the competent court can permit the father to take over the custody if it is satisfied that the welfare of the minor requires custody to be granted to the father, court pointed out.

The bench set aside the high court's judgment while clarifying that the writ petition was dismissed not on merits but on the ground that on facts, the discretion could not have been exercised under Article 226 of the Constitution to disturb the custody of the appellants at this stage.

It, however, directed the appellants to give access to the father and paternal grandparents of the child to meet the child once a fortnight for four months.

When the child becomes comfortable with his father and grandparents, the Court can also consider granting overnight access to the father and grandparents, the bench said.

Thereafter, the competent court will deal with the prayer for interim relief on its own merits, the bench added.

In its judgment, court also summarised broad propositions of settled law after going through various decisions:

(A) Writ of habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy;

(B) The high court always has the discretion not to exercise the writ jurisdiction depending upon the facts of the case. It all depends on the facts of individual cases;

(C) Even if the high court, in a petition of habeas corpus, finds that custody of the child by the respondents was illegal, in a given case, the high court can decline to exercise jurisdiction under Article 226 of the Constitution if the high court is of the view that at the stage at which the habeas corpus was sought, it will not be in the welfare and interests of the minor to disturb his/her custody; and

(D) As far as the decision regarding custody of the minor children is concerned, the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking habeas corpus concerning a minor.

Case Title: Somprabha Rana & Ors Vs State of Madhya Pradesh & Ors