IMPORTANT POINT
Habeas Corpus Petition – Child custody matters – Only paramount consideration is welfare of minor – Parties' rights cannot be allowed to override child's welfare – High Court always has discretion not to exercise writ jurisdiction depending upon facts of the case.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. This appeal arises from a very unfortunate dispute about the custody of a female child (for short ‘the child’) whose present age is two years and seven months. The mother of the child unfortunately died an unnatural death on 27th December 2022. It is alleged that the death of the mother was by hanging. The 4th respondent is the father of the child. The 2nd and 3rd respondents are the paternal grandparents of the child. The 5th respondent is the sister-in-law of the 4th respondent (his brother’s wife). The 1st to 3rd appellants are the real sisters of the deceased mother. The 4th and 5th appellants are the child's maternal grandparents, who were not the parties before the High Court. The 5th respondent is also a real sister of the child’s mother. The 5th respondent is the wife of the 4th respondent’s brother.

2. The 2nd to 4th respondents invoked the jurisdiction of the Madhya Pradesh High Court by filing a petition seeking a writ of Habeas Corpus under Article 226 of the Constitution of India. A case made out in the petition was that the 4th respondent and the mother of the child were residing in Indore, where the unnatural death of the mother occurred. A First Information Report was registered against the 2nd and 4th respondents for offences punishable under Sections 304-B and 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. According to the case of the 2nd to 5th respondents, the 2nd and 3rd appellants came to Indore on 28th December 2022. When the 4th respondent was busy completing the formalities of the post-mortem, without the consent of the 4th respondent, the 2nd and 3rd appellants took away the minor child. The 4th respondent - the father, was arrested in connection with the offence on 19th February 2023 and was granted bail after filing the charge sheet on 19th April 2023. The petition under Article 226 filed by the 2nd to 5th respondents proceeded on the allegation that the 2nd and 3rd appellants illegally took over custody of the child. It must be noted here that on the date of death of the mother, the age of the child was 11 months.

3. By the impugned judgment dated 23rd June 2023, the Division Bench of the High Court of Madhya Pradesh at Indore allowed the writ petition. It issued a writ of Habeas corpus directing the appellants to hand over custody of the child to the 2nd to 5th respondents. On 7th July 2023, this Court issued notice and granted a stay of the operation of the impugned judgment. On 5th December 2023, this Court granted leave and continued the stay. However, this Court observed that it would be open for the husband to apply for custody before the appropriate Court. As of this date, the husband has not applied for custody by filing proceedings under the Guardians and Wards Act, 1890 (for short, “the GW Act”). The appellants made such an application under the GW Act, but it was withdrawn later. This is the statement made by the learned counsel for the appellants. Now, the question is whether the High Court was justified in disturbing the custody of the child, whose age was one year and five months at the time of passing the impugned judgment.

SUBMISSIONS

4. The learned senior counsel appearing for the appellants urged that by the impugned judgment, without making any inquiry, the High Court has ordered the child's custody to be disturbed based only on the legal rights of the child's father and grandparents. He submitted that in the facts of the case, the High Court ought not to have entertained a petition for Habeas Corpus. He submitted that even if the petition was to be entertained, it was the duty of the Court to see what was in the best interests of the minor and custody could not have been disturbed at such tender age without considering the question of the welfare of the minor child.

5. Learned senior counsel appearing for the respondents extensively relied upon decisions of this Court in the cases of Tejaswini Ga