Punjab and Haryana High Court rules that habeas corpus is not applicable in custody disputes between father and child

The Punjab and Haryana High Court has clarified that a habeas corpus petition is not admissible in custody cases involving the father. The bench of Justice Manisha Batra also ruled that custody of a child belonging to the father cannot be considered illegal.

Justice Batra maintained that a writ of habeas corpus in custody matters can only be maintained if the person detaining the child has no legal right to custody. The court stressed that the appropriate remedy in custody disputes is under the Guardianship and Wards Act, 1890 and not through a writ of habeas corpus unless the child is in illegal or unauthorized custody.

Justice Batra also dismissed a writ of habeas corpus filed by a mother seeking custody of her two children from the father. The court observed, “The question before this court is whether the custody of the minor children in the hands of the respondent father can be said to be illegal, so that the issuance of a writ of habeas corpus for release from his custody is justified. In the considered opinion of this court, the answer to that question should be in the negative.”

Justice Batra referred to Section 6 of the Hindu Minority and Guardianship Act, 1956, which states that “the custody of minors who have not completed five years of age shall normally vest in the mother.” Since the children in the present case were 10 and 8 years old, the father's custody could not be considered illegal, the court ruled.

Citing precedents, Justice Batra observed that “recourse to such a remedy should be permissible only when the normal remedy provided by law is either unavailable or ineffective.”

“Certain claims and counterclaims relating to the conduct of the parties have also been raised by the parties against each other which certainly cannot be decided in this petition. Even during investigation by the police authorities, it has been found that the plaintiff is living in a marriage-like relationship. However, without questioning the moral character of the plaintiff and considering the legal position in judgments, this Court is of the view that the remedy available to the plaintiff to obtain custody of the children is to file an appropriate petition under the Guardianship and Wards Act, 1890 and not to seek the grant of a writ of habeas corpus,” concluded Justice Batra.