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High Court Of Madhya Pradesh
Shiv Dayal and A. P. Sen, JJ.
BUDHULAL SHANKARLAL - Appellant
Versus
AN INFANT-CHILD - Respondents
Misc. Criminal Case 471 Of 1970
Decided On : 11/18/1970
The law relating to a writ of habeas corpus is this:
(i) A writ of habeas corpus ad subjiciendum (you have the body to submit or answer), shortly called as a writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an affective means of immediate release from an illegal or improper detention.
(ii) However, the writ further extends its influence to restore the custody of a minor to his guardian, when wrongfully deprive of it.
(iii) The detention of a minor by a person who is not entitled to the legal custody is treated for the purpose of granting a writ as equivalent to imprisonment of the minor.
(iv) The power of the High Court is granting a writ is qualified and has to be used in exercise of judicial and sound discretion.
(v) An application under section 491, Criminal Procedure Code cannot be thrown out merely on the ground that there is an alternate remedy available under the Guardian and Wards Act to the petitioner.
(vi) The paramount consideration in every Such case is the welfare of the minor. The best interest of the child is the primary consideration; the right of the guardian is secondary, so that the latter will not be enforced by issuance of a writ when it is in conflict with the former consideration.
(vii) If that paramount consideration does not call for a writ to be issued, it will be refused and the petitioner would be left to resort to the remedy provided under the ordinary law.
(viii) The guardian's claim to the custody of the child is not a right in the nature of property, but it is a right in the nature of trust for the benefit of the minor. 1968 JLJ 717 relied on. [Para 9
The cardinal principle is that a minor cannot take care of itself so that the State as pater patriae has powers to do all acts and things necessary for his protection. [Para 10
(2) Criminal P.C., 1898 - S.491 - natural guardian demanding custody of child - foster parents refusing-custody of foster parents becomes unlawful petition by natural guardian when may be refused order under this section no bar to civil proceedings.
Whenever the question of custody of a child arises, irrespective of the proceedings in which it arises, the predominent consideration is the welfare of the child. AIR 1960 SC 93 Relied on. [Para 8
When the natural guardian of a minor child demanded the custody of the child from foster parents and they refused to handover the child to the petitioner, then the custody becomes unlawful from that moment. But in a petition for habeas corpus it is the duty of the Court to have regard to the welfare of the child before an order of restoration of the child is passed. [Para 11
The scope of the proceedings under section 491, is very limited. It is not as if the Court has to choose between two rival claimants for the guardianship of the minor. That can be done in appropriate proceedings.
( 1 ) THIS is a petition under Section 491, Criminal Procedure Code, for release of an infant (not yet named) aged about three months from the custody of Kallu and smt. Tarabai (respondents 2 and 3 respectively ).
( 2 ) IT is, alleged in the petition that the petitioner is the father of the child. The child was born on August 18, 1970. Almost immediately after the delivery, the child's mother (the petitioner's wife) died. As the petitioner had to perform the last rites of his wife, he handed over the custody of the child to Kallu and his wife, tarabai, (hereinafter called the respondents) at the Lady Elgin Hospital for temporary care. These respondents are friends of the petitioner. There was an understanding between the petitioner and the respondents that the child would be restored to the petitioner as soon as the last rites were completed. It is then alleged in para 5 of the petition as follows:--"that after finishing the last rites, the petitioner demanded back the custody of respondent No. 1. Respondent Nos. 2 and 3 refused to hand over the custody of respondent No. 1 to the petitioner. " it is further alleged that the petitioner lodged a report in Ranjhi Police Station house on November 7, 1970. The petitioner is a Government employee and has sufficient means to bring up the child.
( 3 ) IN the return filed by Kallu and his wife, it is admitted that the petitioner is the natural father of the boy. It is, however, alleged that when the petitioner's wife died on the labour table, the petitioner took the custody of the dead body but refused to take into his custody the boy from the Lady Doctor who was on duty in the hospital, saying that there was nobody to look after the child in his house. Since the respondents were present there and they are without any issue, they offered to take the child in their custody to bring it up as their own son. The Lady doctor, with the consent of the petitioner, gave the child to the respondents. The petitioner had no money to perform the last rites of his wife. Kallu respondent paid him Rs. 100/- in the hospital for that purpose. The boy was only 3 pounds in weight at the time of his birth. The respondents have been taking the child to Lady dr. A. K. Kamdin for his treatment and he is still under her treatment. They have filed a certificate given by Dr. Kamdin, which shows that she has been treating the child for 2 1/2 months. The respondents have spent a lot in the up-brining and treatment of the child. Dr. Kamdin's hospital is about 7 miles from their residence. On November 4, 1970, the petitioner demanded Rs. 500/- from Kallu respondent, which could not be met by him. This caused displeasure to the petitioner. On the 6th November, the petitioner went to the house of the respondents on a motor bicycle, along with his friend. He asked Smt. Tarabai to get him a glass of water. When she went inside for that purpose, the petitioner and his friends lifted the child and ran away. The matter was reported to the Security Officer, Col. Inderdev, with whose intervention the custody of the child was restored to the respondents. It was after this incident that the petitioner lodged a report in the police Station and filed this petition.
( 4 ) IT is further stated in the return that the petitioner is not in a position to properly take care of the boy. The petitioner's marriage with his deceased wife was an outcome of love affairs and the inter-caste marriage estranged his parents. There is no female member in the petitioner's house who can look after the boy. The boy is of a very tender age and still requires treatment. It is further stated in the return that the respondents have developed great love and affection for the boy. The return is supported by an affidavit.
( 5 ) IN compliance with the rule nisi the boy was produced by the respondents, who also personally appeared before us.
( 6 ) THE petitioner has told us that he is an employee in the Gun Carriage Factory. When we asked him
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