Supreme Court sets aside Telangana HC’s judgment directing handing over minor daughter’s custody to mother in a Habeas Corpus petition

Habeas Corpus petition

Supreme Court: In a special leave petition filed against the impugned judgment and order passed by Telangana High Court, wherein the Court granted the custody of the minor daughter from the father to the mother, the division bench of Aniruddha Bose and Sanjay Karol, JJ. set aside that part of the High Court’s order granting custody of minor daughter from the father to the mother, and confirmed its interim order dated 27-09-2023, so far as the visitation right of the mother is concerned.

In the present case the child is in custody of his lawful and natural guardian, her biological father since one and a half years. The mother voluntarily left her marital residence, leaving behind her two children. Thereafter, she took custody of her son and the daughter resided with the father.

The petitioner submitted that the impugned judgment upsets the settled position of law that a writ of habeas corpus in child custody matters can be invoked only in those cases where the person having the child is not entitled to his/ her legal custody. The child custody matters remedy lies only under Guardianship and Wards Act and it cannot be bypassed by filing a habeas corpus petition unless the corpus of the child is in illegal or unauthorized custody.

The Court refused to interfere with the High Court’s direction granting liberty to the father to file appropriate application in terms of Section 24 of the Guardians and Wards Act, 1890 seeking to declare him as a guardian, appropriate application seeking custody and visitation rights before the Family Court.

However, it set aside that part of the direction which was granting custody of minor daughter from the father to the mother. Further, it confirmed its interim order dated 27-09-2023, wherein the Court stayed the impugned judgment and order and granted visitation rights to the mother.

[Pavan Kumar Kathuroju v State of Telangana, 2024 SCC OnLine SC 31, Order dated 05-01-2024]

Advocates who appeared in this case :

For Petitioner(s): Advocate-On-Record Namit Saxena, Advocate Advitiya Awasthi, Advocate Awnish Maithani, Advocate Gayatri Mishra, Advocate Raghuwanshi, Advocate Swapnil Jain

For Respondent(s): Advocate-On-Record Sravan Kumar Karanam

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