MP HC | Custody of the child with the mother can not be said to be illegal confinement; Court dismisses petition

Madhya Pradesh High Court: S.A.Dharmadhikari J., dismissed a writ petition which was filed invoking the jurisdiction of the Court under Article 226 of the Constitution of India.

The petitioner had alleged that his son (corpus) Ali Khan was in illegal detention of respondent 5 Yasmin Bano who was the wife of the petitioner. He contended that from the initial stage itself behavior of respondent 5 towards the petitioner was not good and she used to quarrel with his mother and other family member. The counsel for the petitioner, Mr Sushil Goswami submitted that the respondent 5 came to her maternal home in Gwalior without any intimation and refused to return back and did not even permit the petitioner to meet the son. He further submitted that as per the settled legal position father has the equal right as of the mother in respect of the son.

The Court explained that child with the mother can not be said to be in illegal confinement, the Court further explained that writ petition for habeas corpus was maintainable only if the person was in illegal confinement and in exceptional circumstances and it was not to justify or examine the legality of the custody. The court observed that in the present matter custody of the child was with the mother/respondent 5 can not be said to be illegal confinement. Remedy lies only under the Hindu Minority and Guardianship Act or the Guardianship and Wards Act as the case may be.

The Court while dismissing the appeal held that it was not inclined to exercise the jurisdiction under Article 226 of the Constitution of India and the petitioner could file an application for custody of the child under the appropriate law.[Mohd. Shakil Khan v. State of M.P., 2020 SCC OnLine MP 2825, decided on 11-12-2020]


Suchita Shukla, Editorial Assistant has put this story together

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    Waise bhi we know how serious and think for the relation of father & Child regarding meetings, as well as for the custody of the child. Father is only only a father of a child if he can pay for the child. Otherwise court not even take interest towards the love of affection of a father for his child. And on the other hand when it comes towards women ? Mother love is the only thing which is enough to let the custody goes in the mother’s side. In the case of father, Money is the base & In the case of Mother, Love is the base. We know what is the definition of Equality in the matrimonial cases.
    A judge passed an order to arrest a husband as well as the mother-In-Law of a woman in a 498a case knowingly very well that the so called Daughter-In- law / Wife / and a Mother of multi handicap son left her child due to his severe illness to her husband and mother-In-Law. And they were the only two persons who were taking care a Multi-handicap child ( Completely Blind, Can’t Speak, Can’t Walk properly and a CP Case.
    And the Judge was a lady who did this. She never even thought even once what will happen with the 5 year old completely dependent child.
    Till date the multi-handicap child is in care and in custody of both of them and taking care of the child. And on the other hand when father was not even allowed to meet her daughter and the court took so much time that today it is very difficult to trust on the judges because indirectly by giving long adjournments the children are suffering till today. But they are still sleeping in a deep sleep.

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