Habeas corpus petition to be upheld in custody issues when detention of a minor by one other guardian proves illegal: Gujarat High Court

The Gujarat Supreme Court, when dealing with a plea filed by the mother of a minor, recently ruled that the habeas corpus motion is to be upheld even in custody matters, provided that the minor’s detention by the other parent or others proven to be illegal and without legal force.

The Court made the observation while relying on the Supreme Court’s observations in the case of Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others

The petitioner had prayed for the issuing of the arrest warrant ordering the police authorities to bring her minor son to justice and hand him over to her. The allegation was that her husband and others had snatched her son from her hands on October 2, 2021.

The couple married in 2013. However, due to certain disputes, she and her son left their marital home in 2019 and instituted proceedings under Section 125 of the Code of Criminal Procedure, 1973 and Section 498A of the Indian Penal Code, 1860 against her husband and his family members.

The petitioner argued that given the child’s age, his permanent custody should be entrusted to her as she will take proper care of him. The petitioner relied on the Supreme Court decision in the case of Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and Others and decisions of the Supreme Courts.

Defendants, on the other hand, made a preliminary allegation that the application for a warrant for custody of the minor child could not be upheld because the warrant was a prerogative constituting an extraordinary remedy which would only be issued if, in the circumstances of the individual case, a statutory legal remedy is either unavailable or ineffective.

Respondents argued that an ordinary remedy under the Hindu Minority and Guardianship Act or the Guardians and Wards Act was available in this case. The Supreme Court decision in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others (2019) was relied upon.

The defendant husband also argued that the petition was untenable as he was the child’s natural guardian under Section 6 of the Hindu Minority and Guardianship Act.

Finally, respondents argued that given respondents’ financial situation, they were in a better position to adequately care for the child and therefore custody should be given to them. The decision of the Allahabad Supreme Court in the case of Shradha Kannaujia (Minor) and Another v State of UP and Others Habeas Corpus was relied upon.

The divisional bench of Justice Vipul M. Pancholi and Justice Dr. AP Thaker considered the detention order to be reasonable in the present case.

In connection with the issue of custody, the court relied on various decisions, notably the decision in Rajeswari Chandrasekar Ganesh, noting that whenever a question regarding custody of a minor child is raised in court, the matter is not decided must be taken into account the legal rights of the parties, but according to the sole and prevailing criterion of what is in the best interests and best interests of the child.

The Court also noted that the issue cannot be decided by considering the parents’ economic circumstances or their ability to provide material and physical comfort, but by considering the child’s psychological, spiritual and emotional well-being.

In this case, the court ordered custody of the child in her favor because the child had been with his mother since they left the marital household in 2019. The court had awarded his mother provisional custody of the minor in October 2021.

Case title: Manyata Avinash Dolani v. State of Gujarat and others

Citation: R/Special Criminal Application #9903 of 2021 with Criminal Miscellaneous Application (Direction) No. 1 of 2022 in R/Special Criminal Application No. 9903 of 2021

Coram: Judge Vipul M. Pancholi and Judge Dr. AP Thaker

Click here to read/download the order