Point of law: Custody of child - In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is illegal and without authority of law

JUDGMENT :

1. Heard Sri Piyush Dubey, learned counsel for the petitioners, Sri Sanjay Singh, learned counsel for respondent no.4 and Ms. Sushma Soni, learned Additional Government Advocate appearing for State respondents.

2. The petitioner no.2 asserting himself to be the father of petitioner no.1-corpus, has filed the present habeas corpus petition alleging that the corpus is under illegal custody of his mother-respondent no.4.

3. As per the pleadings in the petition, the petitioner no.1 is stated to have been born in the year 2012. On 6.01.2019, the respondent no.4 is said to have left her matrimonial home along with her minor child-petitioner no.1 and since then he is with his mother-respondent no.4. A divorce petition, registered as Case No. 1714/2020, is stated to be pending between the parties before the Principal Judge, Family Court, Agra.

4. Pursuant to the rule nisi issued on 23.7.2021, the petitioner no.1-corpus has been produced in court by his mother-respondent no.4, and they have been identified by Sri Sanjay Singh, learned counsel for the respondent no.4.

5. Counsel for the parties do not dispute the fact that the child being a minor, it would be very difficult to ascertain his wishes and matters relating to custody and guardianship may have to be decided by the Court in exercise of its parens patriae jurisdiction i.e. looking into the welfare of the child.

6. Learned Additional Government Advocate has interacted with the child, in Court, and submits that child has stated that he is living comfortably with the respondent no.4, his mother, under her care and guardianship. The child has stated that he is being taken good care of and is being accorded love, affection and guardianship. There is nothing to suggest that the child is under any kind of threat or coercion or that he is under any kind of illegal detention.

7. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain vs. State of U.P. and others, AIR 1964 SC 1625 and Kanu Sanyal vs. District Magistrate Darjeeling, (1973) 2 SCC 674.

8. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin vs. Dr. Rukhsana and others, (2001) 5 SCC 247, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:-

"11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court…"

9. Taking a similar view in the case of Nithya Anand Raghvan v State (NCT of Delhi) and another, (2017) 8 SCC 454, it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations made in the judgment are as follows:-

“44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, has he