In custody matters, a writ of habeas corpus is permissible only if it is held that the detention of minor children is unlawful and without legal authority: Allahabad HC

The Allahabad High Court observed that in a custody matter, a writ of habeas corpus would be permissible only if it is held that the detention of the minor child is unlawful and without legal basis.

Justice Yogendra Kumar Srivastava held: “In an application for a writ of habeas corpus for custody of a minor child, as is the case here, the primary consideration for the court is to determine whether to recognize custody of the child “is unlawful and unlawful and whether his or her welfare requires that the current custody arrangement be modified and that the child be placed in the care and custody of a person other than the one in whose care he or she is currently held.”

Advocate Brijesh Kumar Pandey appeared for the plaintiffs and advocate Divya Ojha appeared for the defendants.

During the proceedings, it was found that Plaintiff 2 was living separately from Defendant No. 3 and she filed a complaint regarding the custody of Plaintiff No. 1. Defendant No. 3, the father of plaintiff No. 1, expressed his willingness to take back plaintiff No. 2, but she was not willing to return to her matrimonial home.

The court noted the strained relationship between the parties and the existence of criminal cases including an FIR filed by plaintiff No. 2 and another filed by defendant No. 2.

In considering the habeas corpus petition for custody of a minor child, the court emphasized the primary consideration of the child's welfare. The court added: “The role of the Supreme Court in considering cases of custody of a minor in an application for a writ of habeas corpus would have to be based on the touchstone of the principle of parens patriae jurisdiction, and the overriding consideration would be the best interests of the child. In such cases, the matter would have to be decided not only on the basis of the legal rights of the parties, but on the prevailing criterion of what best serves the interest and welfare of the minor.”

It highlighted that a writ of habeas corpus is permissible only when the detention of the minor child is unlawful and without legal authority. After considering the facts, the court affirmed the previously issued Rule Nisi and dismissed the habeas corpus petition. The court said: “In a custody case, a writ of habeas corpus would be admissible only if it is determined that the detention of the minor child is illegal and without legal basis.” In a court case in which rights are established on the basis of affidavits, “The court may, in a case where it considers that a detailed investigation would be necessary, refuse to exercise extraordinary jurisdiction and direct the parties to approach the appropriate forum.”

The court allowed plaintiff No. 1 (Corpus) to go with defendant No. 3 (his father) accompanied by a police officer to the place from where he was brought for security reasons.

The court clarified that its observations are prima facie in nature and do not prevent the parties from asserting their claims for guardianship and custody before the competent court.

Title of the case: Hasan Raza & Anr. v. State of UP & Ors., [2024:AHC:16444]

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