2019 Supreme(SC) 540

SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
Tejaswini Gaud and Ors. – Appellants
Versus
Shekhar Jagdish Prasad Tewari and Others – Respondents
Criminal Appeal No. 838 of 2019 (Arising Out of SLP (Crl.) No. 1675 of 2019)
Decided On : 06-05-2019

IMPORTANT POINTS
(1) Detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of minor child.
(2) In child custody matters, power of High Court in granting writ is qualified only in cases where detention of a minor by a person who is not entitled to his legal custody.
(3) In cases arising out of proceedings under Guardians and Wards Act, jurisdiction of court is determined by whether minor ordinarily resides within area on which court exercises such jurisdiction.

Headnote:(A) Constitution of India – Article 226 – Writ of Habeas Corpus – Writ of habeas corpus is a prerogative process for securing liberty of subject by affording an effective means of immediate release from an illegal or improper detention – Writ also extends its influence to restore custody of a minor to his guardian when wrongfully deprived of it – Detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of minor child – For restoration of custody of a minor from a person who according to personal law, is not his legal or natural guardian, in appropriate cases, writ court has jurisdiction. (Para 13)

       (B) Constitution of India – Article 226 – Hindu Minority and Guardianship Act, 1956 – Sections 6 and 13(2) – Writ of Habeas Corpus in child custody matters – Habeas corpus proceedings is not to justify or examine legality of custody – Habeas corpus proceedings is a medium through which custody of child is addressed to discretion of court – Habeas corpus is a prerogative writ which is an extraordinary remedy and writ is issued where in circumstances of particular case, ordinary remedy provided by law is either not available or is ineffective; otherwise a writ will not be issued – In child custody matters, power of High Court in granting writ is qualified only in cases where detention of a minor by a person who is not entitled to his legal custody – In view of pronouncement on the issue in question by Supreme Court and High Courts, in child custody matters, writ of habeas corpus is maintainable where it is proved that detention of a minor child by a parent or others was illegal and without any authority of law. (Para 18)

       (C) Hindu Minority and Guardianship Act, 1956 – Sections 6 and 13(2) – Writ of Habeas Corpus to handover custody of minor child to respondent No.1-father of child – Preferential right of parties to get custody of minor child – In child custody matters, ordinary remedy lies only under Hindu Minority and Guardianship Act or Guardians and Wards Act – In cases arising out of proceedings under Guardians and Wards Act, jurisdiction of court is determined by whether minor ordinarily resides within area on which court exercises such jurisdiction – There are significant differences between enquiry under Guardians and Wards Act and exercise of powers by a writ court which is of summary in nature – What is important is welfare of child – In writ court, rights are determined only on the basis of affidavits – Where court is of the view that a detailed enquiry is required, court may decline to exercise extraordinary jurisdiction and direct parties to approach civil court – It is only in exceptional cases, rights of parties to custody of minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus – In present case, appellants are sisters and brother of deceased mother who do not have any authority of law to have custody of minor child--Respondent-father is a natural guardian of minor child and is having legal right to claim custody of child – Entitlement of father to custody of child is not disputed and child being a minor aged 1½ years cannot express its intelligent preferences – Father, being natural guardian, was justified in invoking extraordinary remedy seeking custody of child under Article 226 of Constitution of India. (Paras 19 and 20)

       (D) Hindu Minority and Guardianship Act, 1956 – Sections 6 and 13(2) – Writ of Habeas Corpus to handover custody of minor child to respondent No.1-father of child – Preferential right of parties to get custody of minor child – Father is only natural guardian alive and has neither abandoned nor neglected child – Only due to peculiar circumstances of case, child was taken care of by appellants – Child went to custody of appellants in unavoidable conditions – Only circumstances involving his health prevented father from taking care of child – Under Section 6 of Act, father is natural guardian and he is entitled to custody of child and appellants have no legal right to custody of child – In determining question as to who should be given custody of a minor child, paramount consideration is welfare of child and not rights of parents under a statute for the time being in force – Child lost her mother when she was just fourteen months and is now being deprived from love of her father for no valid reason – Father is a highly educated person and is working in a reputed position – His economic condition is stable – Welfare of child has to be determined owing to facts and circumstances of each case and court cannot take a pedantic approach – Merely because appellants being relatives took care of child for some time, they cannot retain custody of child – First respondent is fully recovered from his illness and is now healthy and having support of his mother and is able to take care of child – High Court was right in holding that welfare of child will be best served by handing over custody of child to first respondent – Taking away child from custody of appellants and handing over custody of child to first respondent might cause some problem initially but that will be neutralized with passage of time – After child completes four years, appellants permitted to take child on every Saturday and Sunday from residence of father. (Paras 31, 32, 33, 34, 35, 36 and 37)

       Facts of Case:

       Instant appeal arises out of judgment passed by High Court of Bombay by which High Court held that first respondent-father of child being surviving parent and in interest of welfare of child, custody of child must be handed over to first respondent-father and issued writ of habeas corpus directing appellants to handover custody of minor child to respondent No.1-father of child.

       Findings of Court:

       Child is only 1½ years old and child was with father for about four months after her birth. If no custody is granted to first respondent, court would be depriving both child and father of each other’s love and affection to which they are entitled. As child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With passage of time, she might develop more bonding with appellants and after some time, she may be reluctant to go to her father in which case, first respondent might be completely deprived of her child’s love and affection. Keeping in view welfare of child and right of the father to have her custody and after consideration of all facts and circumstances of case, High Court was right in holding that welfare of child will be best served by handing over custody of child to the first respondent.

       Result : Appeal disposed of.