Hindu Minority and Guardianship Act, 1956: ss. 6, 13 – Custody of a minor child – Writ of habeas corpus – Maintainability of – On facts, father filed habeas corpus petition seeking custody of minor child from the appellants-uncle and aunt of the minor child – High Court directed issuance of writ of habeas corpus directing the appellants to hand over the custody of the minor child to the father – Justification of – Held: Appellants are the sisters and brother of the mother of the child who do not have any authority of law to have the custody of the minor child – As per s. 6, the father is a natural guardian of the minor child and has the legal right to claim the custody of the child – Father is the only natural guardian alive and has neither abandoned nor neglected the child – Child went into the custody of the appellants in unavoidable conditions, that is due to illness of his mother and father – Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child – If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other’s love and affection to which they are entitled – As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage – Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, the High Court was right in holding that the welfare of the child would be best served by handing over the custody of the child to the father – However, till the child settles down in the atmosphere of the father’s house, the appellants to have visitation rights – Order of the High Court is upheld subject to the said directions. Writ: Writ of habeas corpus – Maintainability of, in child custody matters – Held: Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention – Writ extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it – In child custody matters, the power of the High Court in granting the writ habeas corpus is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody – In such matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be – It is only in exceptional cases, the rights of the parties to the custody of the minor would be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. Disposing of the appeal, the Court
HELD: 1.1 Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. [Para 13] [347-F-G; 348-A]
1.2 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 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. [Para 18] [350-C-F]
1.3 In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. [Para 19] [350-F-H; 351-A]
2.1 In the instant case, the appellants are the sisters and brother of the mother who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondentfather is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article
226 of the Constitution of India. [Para 20] [351-D-F]
2.2 The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child and due weight should be given to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. [Para 25, 26] [353-E-F; G]
2.3 In the instant case, the father is the only natural guardian alive and has neither abandoned nor neglected the child. Only due to the peculiar circumstances of the case, the child was taken care of by the appellants-relatives of the child’s mother Z. The child S went into the custody of the appellants in strange and unfortunate situation. During the fifth month of her pregnancy, the mother Z was diagnosed with stage 3/4 breast cancer. Z gave birth to child S on 14-08-2017. On 29-11-2017, respondent No.1 collapsed with convulsions due to illness. Upon his collapse, he was rushed to hospital where he was diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis. He was kept on ventilator for nearly eight days, during which period, appellants took care of Z and the child. The first respondent had to undergo treatment in different hospitals for a prolonged period. From 2911-2017 to June 2018, Z and S stayed at the residence of appellant’s in Mumbai and Pune. Z passed away on 17-10-2018. The respondent after recovering from his illness visited Pune to seek custody of the child. But when they refused to hand over the custody, the father was constrained to file the writ petition seeking custody of the child. The child S thus went to the custody of the appellants in unavoidable conditions. Only the circumstances involving his health prevented the father from taking care of the child. Under Section 6 of the Act, the father is the natural guardian and he is entitled to the custody of the child and the appellants have no legal right to the custody of the child. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child’ and not rights of the parents under a statute for the time being in force. [Para 31 and 32] [357-D-E; F-G; 358-A-C]
2.4 The welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach. In the instant case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child. [Para 34] [358-F-H]
2.5 The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other’s love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent might be completely deprived of her child’s love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, it is found that the High Court was right in holding that the welfare of the child would be best served by handing over the custody of the child to the first respondent. [Para 35] [359-A-D]
2.6 Taking away the child from the custody of the appellants and handing over the custody of the child to the first respondent might cause some problem initially; but, that will be neutralized with the passage of time. However, till the child is settled down in the atmosphere of the first respondent-father’s house, the appellants No. 1 and 2 shall have access to the child as stipulated. The impugned judgment of the High Court is affirmed subject to the above directions and observations. [Para 36, 37] [359-D-E; 360-A]
Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92 ; Sarita Sharma v. Sushil Sharma (2000) 3 SCC
14 ; [2000] 1 SCR 915 ; G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472 : AIR 2005 Mad 452 ; L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online AP 80 : AIR 1981 AP 1 ; Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others 1992 SCC Online All 548 : AIR 1993 All
230 ; Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935 ; Murari Lal Sharma and Another v. State of West Bengal and Others 2013 SCC Online 23045 : AIR 2013 Cal 213 ; R. Suresh Kumar v. K.A. Kavathi and Others MANU/TN/8529/2006 ; Athar
Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
654 : [2010] 1 SCR 49 ; Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413 : [2008] 11 SCR 1111 ; Kirtikumar Maheshankar Joshi v.
Pradipkumar Karunashanker Joshi (1992) 3 SCC
573 ; Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC
42 : [2008] 16 SCR 396 ; Baby Sarojam v. S.
Vijayakrishnan Nair AIR 1992 Ker 277 ; Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online Del 6661 : AIR 2018 Del 127 ; A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978 SCC Online Kar 241 : AIR 1978 Kar 220 ; Gohar Begam v. Suggi @ Nazma Begam and Others AIR 1960 SC 93 : [1960] SCR 597 ; Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621 ; Amol Ramesh Pawar v. State of Maharashtra & Others 2014 SCC Online Bom 280 ; Marggarate Maria
Pulparampil Nee Feldman v. Dr. Chacko Pulparampil and Others AIR 1970 Ker 1 (FB) ; Capt. Dushyant Somal v. Smt. Sushma Somal & Others (1981) 2 SCC
277 ; Syed Saleemuddin v. Dr. Rukhsana and Others (2001) 5 SCC 247 ; Nirmaljit Kaur (2) v. State of Punjab and Others (2006) 9 SCC 364 : [2005] 5 Suppl. SCR 514 ; Surya Vadanan v. State of Tamil Nadu and Others (2015) 5 SCC 450 : [2015] 4 SCR 903 ; Ruchika Abbi & Anr. v. State (National Capital Territory of Delhi) and Another (2016) 16 SCC 764; Kanika Goel v. State of Delhi through Station House Officer and Another (2018) 9 SCC 578 ; Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525 : [1999] 2 Suppl. SCR 280 ; Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 : [2011] 7 SCR 674 ; Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454 : [2017] 7 SCR 281 ; Lahari Sakhamuri v. Sobhan Kodali 2019
(5) SCALE 97 ; Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 : [2008] 11 SCR 1111 ; Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 : [1973]
3 SCR 918 – referred to.
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