Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.


The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573,  where in almost similar circumstances the father was facing a charge under Section 498­A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

Therefore, in an application seeking a writ of habeas corpus for custody of a minor child, 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 the welfare of the child requires 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 the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]

Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

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