Somprabha Rana & Ors. vs The State of Madhya Pradesh & Ors.

Held: When the Court deals with the issue of habeas corpus regarding a minor, the court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child – Such issues cannot be decided mechanically – Court has to act based on humanitarian considerations – Court cannot ignore the doctrine of parens patriae – On facts, High Court did not deal with and consider the issue of the welfare of the child – High Court disturbed the child’s custody based only on the father’s right as a natural guardian – Child had been in the custody of the appellants-maternal side relatives from the tender age of 11 months after her mother’s death, for more than one and a half years – Thus, not a case where custody of the child could be disturbed in a petition u/Art. 226 – At this tender age, if custody of the child is immediately transferred to the father and grandparents, the child would become miserable as she has not met them for a considerably long time – Moreover, no allegation that the child is not being looked after properly by the appellants – Even assuming that the father is not entitled to custody, at this stage, he is entitled to have access to meet the child, in the child’s best interest that she knows her father and grandparents and remains with them for some time to begin with – Father has shown unwillingness to apply for custody, orders of the Court regarding custody not final – Thus, it is proposed to permit the appellants or any of them to apply for custody to the Regular Court under the GW Act – Impugned judgment and order set aside – Writ Petition dismissed not on merits but on the ground that the discretion could not have been exercised u/Art. 226 to disturb the custody at this stage – Appellants to give access to the father and paternal grandparents of the child to meet the child once a fortnight – Order of access to continue for stipulated period, thereafter, would be open to be modified by the trial court – Guardians and Wards Act, 1890. [Paras 8-14] Writ – Writ of Habeas Corpus – Nature of – Custody of the minor: Held: Writ of Habeas corpus is a prerogative writ – It is an extraordinary and discretionary remedy – High Court always has the discretion not to exercise the writ jurisdiction depending upon the facts of the individual cases – 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 u/Art. 226 if the High Court is of the view that at the stage at which the Habeas Corpus was sought, it would not be in the welfare and interests of the minor to disturb his/her custody – As regards, the custody of the minor children, the only paramount consideration is the welfare of the minor – Parties’ rights cannot be allowed to override the child’s welfare. [Para 6] Custody matters – Custody of minor – Procedings before the Regular Civil/Family Court:

Held: Only in substantive proceedings under the GW Act 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 – Court can frequently interact with the child – Practically, all Family Courts have a child centre/play area – Child can be brought to the play centre, where the judicial officer can interact with the child – Access can be given to the parties to meet the child at the same place – Moreover, the Court dealing with custody matters can record evidence – Court can appoint experts to make the psychological assessment of the child – If an access is required to be given to one of the parties to meet the child, the Civil Court or Family Court is in a better position to monitor the same. [Paras 10]