The Allahabad High Court while dismissing the petition said that the role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child.
In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.
A Single Bench of Justice Yogendra Kumar Srivastava passed this order while hearing a habeas corpus petition filed by Hasaan Raza @ Taiyab and Another.
A.G.A-I, on the basis of inquiry made from the petitioner No 2, in Court, has submitted that she is living at her maternal home in district Rampur and that the petitioner No 1 (corpus) is presently with respondent No 3.
She has submitted that the custody of the petitioner No 1 (corpus) was taken away from her, on 28.04.2023, and a complaint in this regard has also been lodged with the police. On a pointed query, as to whether she is willing to go to her matrimonial home, she has replied in negative.
A.G.A-I has also made an inquiry from the respondent Nos 3, in Court, and submitted that he has stated that he is working as a labourer in district Rampur and the petitioner No 1 (corpus) is his son and is under his care and custody.
He has stated that the petitioner No 2 (his wife) is living separately due to strained relationship. He has also stated that he is willing to take back the petitioner No 2 (his wife), but she is unwilling.
A.G.A-I stated that she has also interacted with the petitioner No 1 (corpus) and submitted that he has shown an attachment to his father and does not apparently seem to respond to the petitioner No 2.
An F.I.R dated 4.09.2019, is stated to have been lodged by the petitioner No 2, registered as Crime under Sections 498-A, 323, 506 I.P.C, 3/4 of the D.P Act and Section 4/3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, Police Station Khajuriya, District Rampur, in which the charge sheet has been submitted.
Another F.I.R dated 03.11.2023 is also stated to have been lodged by the respondent No 2, registered as Case under Sections 420 and 34 I.P.C, Police Station Khajuriya, District Rampur, in which the respondent No 3 has been named as an accused.
The Court said that,
The pendency of the aforesaid criminal cases is indicative of the acrimony and the strained relationship between the parties.
In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.
“In a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum”, the Court observed while dismissing the petition.
Having regard to the entirety of the facts, the rule nisi issued earlier is discharged by the High Court.
“The petitioner No 1 (corpus) would be at liberty to go along with the respondent No 3 (his father) to the place from where he has been brought. They shall be accompanied by the police officer, in safety, but free”, the order reads.