1992 Supreme(J&K) 5

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
T.S. Doabia, J.
Aliya Shamim - Appellant
Versus
State & Ors. - Respondent
OWP No. 695/1997
Decided On : 20 February, 1992

Headnote:

Writ of Habeas Corpus - Custody of Minor - Welfare of the Child - Personal Law - Citizenship - Father's Right - Mother's Right - Paramount Consideration.

Fact of the Case:

Petitioner, a Pakistani national, and respondent No. 5, an Indian national, had a minor daughter born in Dubai. The couple came to India with the minor on a valid visa for 30 days, after which the petitioner left for Dubai. The respondent No. 5 and the minor continued to stay in India and shifted their place of abode to Jammu and Kashmir. The petitioner sought a writ of Habeas Corpus, claiming illegal detention of the minor and sought custody of the minor. The respondent No. 5 contended that the petition lacked sincerity and was motivated to exert undue pressure, and that the minor was in her legal custody under Muslim Personal Law.

Finding of the Court:

The court held that a writ of Habeas Corpus can be issued at the instance of a father for the production of a minor in court, and that the paramount consideration in determining custody is the welfare of the minor. The court further held that the personal law of the parties may be considered, but the welfare of the minor remains the primary concern. In this case, the court found that the minor was studying and under the care of the mother, and that disturbing her emotionally by changing her custody would not be in her best interest. The court also noted that the petitioner had not discharged his parental obligations for three years and had made allegations against the respondent No. 5 without providing evidence.

Issues: 1. Whether a writ of Habeas Corpus can be issued at the instance of a person who is not a citizen of India? 2. Whether a writ of Habeas Corpus can be issued to secure the custody of a minor at the instance of the father? 3. Whether a writ of Habeas Corpus can be issued when alternate remedies are available? 4. Who can file a petition on behalf of a minor? 5. Whether the concept of welfare of the minor is a relevant consideration in these matters? 6. Whether the wishes of the minor are required to be considered? 7. Whether Personal Law of parties would prevail and the mother can continue to have the custody of minor.

Ratio Decidendi: 1. A writ of Habeas Corpus can be issued at the instance of a person who is not a citizen of India, as the writ is intended to protect personal liberty and is not limited to citizens. 2. A writ of Habeas Corpus can be issued to secure the custody of a minor at the instance of the father, as the father has a legal right to the custody of his children unless there is a special reason to deny him such right. 3. A writ of Habeas Corpus can be issued even when alternate remedies are available, as the writ is an extraordinary remedy intended to provide immediate release from unlawful detention. 4. A petition on behalf of a minor can be filed by the parent or guardian who is legally entitled to the custody of the minor. 5. The concept of welfare of the minor is a relevant consideration in determining custody, and the court must regard the welfare of the infant as the first and paramount consideration. 6. The wishes of the minor may be considered, but they are not determinative, especially if the minor is not of sufficient age to form an opinion. 7. The Personal Law of the parties may be considered, but the welfare of the minor remains the primary concern.

Final Decision: The petition for a writ of Habeas Corpus was dismissed, and the custody of the minor remained with the mother. The court also dismissed the petition filed by the minor seeking citizenship, leaving it to the authorities to decide on the matter.