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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD, HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA, JJ.
Parwez Akhtar S/o Rafque Alam – Petitioner
Versus
The State of Jharkhand – Respondent
W.P. (Cr.) No. 1173 of 2023
Decided On : 14-03-2024
HABEAS CORPUS - CUSTODY OF MINOR - Hindu Minority and Guardianship Act, 1956; Guardians and Wards Act, 1890; Article 226 of the Constitution of India - The court discussed the applicability of the Hindu Minority and Guardianship Act, 1956, emphasizing that while the father is the natural guardian, the welfare of the child is paramount. The court highlighted that habeas corpus can be maintained in custody matters where illegal detention is established. However, it noted that the minor's intelligent preference must be considered, and that the case required detailed examination beyond the summary nature of habeas corpus proceedings. The court ultimately concluded that the matter should be adjudicated in a civil court rather than through a writ petition.
Fact of the Case:
The petitioner filed a writ petition for habeas corpus to secure the release of his minor son, Abu Hamza, who was allegedly detained by the maternal uncle following the death of the petitioner's wife. The petitioner claimed legal custody based on being the natural guardian under the Hindu Minority and Guardianship Act, while the respondent argued that the minor's welfare was better served living with the maternal uncle.
Finding of the Court:
The court found that while the petitioner is the natural guardian, the welfare of the child must be prioritized. It noted that the minor, being 10-11 years old, is capable of expressing his preference, which necessitates a detailed inquiry that cannot be conducted in a summary habeas corpus proceeding. The court emphasized that the issue of custody should be resolved in a civil court rather than through the writ jurisdiction.
Issues: 1. Whether the writ petition for habeas corpus is maintainable in this case? 2. What is the appropriate legal framework governing the custody of the minor? 3. How should the welfare and preference of the minor be assessed in custody disputes?
Ratio Decidendi: The court held that while the father has a legal right to custody as the natural guardian, the welfare of the child is the paramount consideration. The court reiterated that habeas corpus proceedings are not suited for resolving custody disputes that require detailed factual inquiries and assessments of the child's preferences.
Final Decision: The writ petition was dismissed, with the court allowing the petitioner to seek redress in an appropriate civil court.
JUDGMENT :
SUJIT NARAYAN PRASAD, J.
1. The instant criminal writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of habeas corpus directing the respondent nos. 2-4 to immediately and forthwith release the minor son of the petitioner, namely, Abu Hamza, aged about 10 years, who has been illegally detained by the respondent no. 5 without having legal entity.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The wife of the petitioner has left him, but, while doing so, she has given him a son namely Abu Hamza on 18.07.2013 for his survival and the son was studying in the Delhi Public School, Hazaribagh.
The wife of the petitioner became ill and for better medical treatment in the month of October, 2023, the petitioner has bought her at Anjuman Hospital, Ranchi and her treatment continued for about 17 days in Ranchi and all the expenses were incurred by the present petitioner being the husband. Thereafter, when the wife of the petitioner did not recover, then on 11.11.2023, the petitioner himself sent his wife along with his brother-in-law to Vellore for her treatment by giving money to his brother-in-law for the expenses which would be incurred during the course of treatment as the wife of the petitioner asked him to stay at Hazaribagh only and take care of their only minor son. The wife of the petitioner could not survive and died on 17.11.2023.
The last rituals of cremation of his wife was held on 18.11.2023 at Ranchi and when the petitioner along with his son and other family members came to Ranchi from Hazaribagh to attend the last rituals of his wife, then the brother-in-law and other relatives as well as miscreants had assaulted the petitioner and his relatives, even the brother-in-law of the petitioner had forcefully taken the son of the petitioner in their custody, as such, the petitioner having no option left, intimated to the same to the Officer In-charge, Lower Bazar Police Station, Ranchi, which was instituted as Lower Bazar P.S. Case No. 372 of 2023. The petitioner has lodged a criminal case being Complaint Case No. 2000 of 2020 against the respondent no. 5.
In the aforesaid background, the instant writ petition has been filed for release of the minor son of the petitioner who, at present, is living with his maternal uncle.
Grounds on behalf of the Petitioner:
3. Mr. Navin Kumar Singh, learned counsel for the petitioner has taken the following grounds:
(ii) The petitioner being the father is well capable of taking care of the minor having the financial viability as also part of the joint family.
(iii) The maternal uncle is not so financially sound as also there is matrimonial dispute of the respondent no. 5 with his wife, hence, he alone is not in a position to look after the minor.
(iv) The petitioner has spent his expenditure in the treatment of his wife right from the District of Hazaribagh and to the Christian Medical Hospital, Vellore but in course of her treatment, she died.
(v) The minor was admitted in the Delhi Public School, Hazaribagh which is a school of repute and as such, being the father, he is taking all care for the purpose of his well-being.
(vi) The ground has also been taken that the petitioner being the father is having the legal right and when he reached at the time of cremation of his wife along with his son/minor, then he was illegally
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The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
The extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in exceptional cases where the ordinary remedy provided by the law is either unavailable or ineffective, and the welfare....
The High Court retains discretion to grant habeas corpus for custody, yet it cannot disrupt prior lawful custody orders, emphasizing child welfare as paramount.
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
Petition for production and custody of minor child – Once complexities is perceived, Writ Court should not usurp powers of Civil Court to decide and proper course to be adopted in this regard is to r....
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