When is the Habeas Corpus Defense in Custody Matters Valid? Explains Gujarat HC

The Gujarat Supreme Court recently ruled, in response to a request by the mother of a minor, that a habeas corpus motion should be upheld even in custody matters, provided the detention of the minor by the other parent or others is proven to be illegal and without legal authority authority.

The court made the observation, citing the Supreme Court’s judgment in Tejaswini Gaud et al. v. Shekhar Jagdish Prasad Tewari et al.

The petitioner had asked for an arrest warrant ordering the police to bring her minor son to court and hand him over to her. On October 2, 2021, her husband and others allegedly snatched away their son.

In 2013 the couple married. However, due to disagreements, she left her marital home with her son in 2019 and filed a case against her husband and his family members under Section 125 of the Criminal Procedure Code, 1973 and Section 498A of the Indian Penal Code, 1860.

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

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 which constituted an extraordinary remedy which would only be granted if the ordinary remedy provided for by law fell under the circumstances of the individual case is either unavailable or ineffective.

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

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The defendant husband also claimed that the petition could not be upheld because he was the child’s natural guardian under Section 6 of the Hindu Minority and Guardianship Act.

Finally, respondents argued that their financial situation put them in a better position to care for the child appropriately and therefore custody should be given to them. The decision of the Allahabad High Court in the case of Shradha Kannaujia (minor) and others v. State of UP and others, habeas corpus, was quoted.

In the present case, the divisional bench of Judge Vipul M. Pancholi and Judge Dr. AP Thaker that the warrant should be upheld.

Regarding custody, the court relied on various decisions, most notably the decision in Rajeswari Chandrasekar Ganesh, noting that whenever a question of custody of a minor child is brought to court, the matter is not considered with the legal ones It is up to the parties’ rights to decide, but according to the sole and prevailing criterion of what is in the child’s interest and best interests.

The Court also noted that the issue could not be decided on the basis of the parents’ financial circumstances or their ability to provide material and physical comfort, but rather the child’s psychological, spiritual and emotional well-being.

In this case, the court awarded her custody of the child as the child had been with his mother since she left their marital home in 2019. In October 2021, the court awarded his mother temporary custody of the minor child.

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