[Child Custody] Habeas writ lies solely when minors are held by an individual who just isn’t entitled to their authorized custody: Allahabad HC

The Allahabad Supreme Court has stated that the power of the Supreme Court to issue a habeas corpus judgment in custody matters can only be exercised in cases where the detention of a minor is carried out by a person who is not entitled to his/her custody rights has custody.

In light of this, the Raj Beer Singh Chamber of Justice dismissed a writ of habeas filed by the mother of a 5-year-old girl who was seeking custody of a minor from her father (her husband), as the court found that the appropriate remedy in such matters would be subject to the Hindu Minority and Guardianship Act 1956 or the Guardians and Wards Act 1890.

The case in brief

Allegedly, petitioner #2 (mother of the child) was molested by her husband and other private defendants and in September 20202 she was evicted from the marital home and her underage girl (Corpus) was abducted by the private defendants.

She then took her habeas plea to the High Court, arguing that Defendant No 4 (her husband) was treating the minor unfairly and that she was in the Defendants’ unlawful detention, which is why she allowed the minors to be present in court requested.

order of the court

Referring to several Apex Court rulings, the Court began by saying that a plea of ​​habeas may be upheld in custody matters if the detention by parents or others is found to be unlawful and without legal authority.

As to the facts of the case, however, the court found that the private defendants are none other than the birth father and grandparents of the minor child and therefore it cannot be said that private defendants’ custody of the child is unlawful.

Emphasizing that habeas corpus proceedings cannot be used to consider the issue of custody of a child, the Court states that:

“In a request for a custody review of a minor child, as is the case here, the primary consideration for the court would be to determine whether custody of the child may be qualified as unlawful and unlawful and whether his/her Wohl requires that previous custody changes and the child is placed in the care and custody of another person.”

As a result, the court found that a petition for divorce under Section 13-B of the Hindu Marriage Act had been filed with the court and found that the matter of custody of the child during the pendency of the Hindu Marriage Act 1955 proceedings is HMA depends upon the provisions contained in § 26.

“Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and states that in any proceeding under that Act the court may from time to time make such injunctions as it thinks fair and reasonable in relation to custody, maintenance and upbringing of minor children, consistent with their wishes wherever possible,” the court added.

Eventually, the court dismissed the cause of action, contending that in a court proceeding establishing rights based on affidavits and in a case where the court thought a detailed investigation would be required, it could dismiss it who claim extraordinary jurisdiction and instruct the parties to refer to the appropriate forums.

Title of Case – Shradha Kannaujia (underage) and another vs State of UP and 5 others
Case citation: 2022 LiveLaw (AB) 28

Click here to read/download the order