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2025 Supreme(Online)(Mad) 58073
IN THE HIGH COURT OF JUDICATURE AT MADRAS
J.Nisha Banu, S.Sounthar, JJ
J.Easwari – Appellant
Versus
The Superintendent of Police, Office of the Superintendent of Police, Salem District. – Respondent
H.C.P.No.1604 of 2025
For the Petitioner: Mr.R.Murali
For R1 & R2: Mr.A.Damodaran Addl. Public Prosecutor
For R3: Mr.Ramana Reddy
Writ of Habeas Corpus in child custody matters is not maintainable unless there is illegal detention by a person not entitled to custody.
Headnote:(A) Article 226 of the Constitution of India - Habeas Corpus - This petition was filed to secure the custody of a minor child from the father who was allegedly keeping the child without consent of the mother - The court noted that the writ is not maintainable since the father has legal custody, and the issue of custody should be resolved under appropriate civil proceedings instead. (Paras 3, 4, 8, 9)
(B) The court emphasized the principle that welfare of the child is paramount and the writ must only be used when there is illegal detention by a non-entitled person. (Paras 5, 6, 7)
Facts of the case:
The minor child was taken by the father without the mother's consent and the petitioner alleged illegal detention.
Findings of Court:
The court found that since the child is in the lawful custody of the father, this petition is not maintainable, and the proper remedy lies under civil laws.
Issues: The main issue was whether the child's custody is illegal when held by the biological father.
Ratio Decidendi: The court clarified that a writ of Habeas Corpus is not appropriate for custody disputes unless there is unlawful detention; it directs parties to proper forums for resolution.
Result: Habeas Corpus Petition dismissed.
| Table of Content |
|---|
| 1. petition for habeas corpus filed regarding minor child's custody. (Para 1 , 2) |
| 2. child's preference noted; mother's attempt at interaction. (Para 3) |
| 3. court's observations on custody responsibilities and its legal ramifications. (Para 4 , 5 , 6 , 7) |
| 4. court's decision to dismiss habeas corpus in the absence of illegal detention. (Para 8) |
(By J.Nisha Banu,J.)
This petition has been filed for a direction to the 2nd respondent herein to produce the body or in person of the petitioner's minor son, J.Pragadeesh, aged 5 years, S/o Jeyamurugan before this Court and handover him to the petitioner.
2. The learned counsel for the petitioner would submit that the minor child was snatched away from the petitioner/mother by the father/3rd respondent and kept the custody of the child with him without the consent of the petitioner and not permitting her even to see him, which amounts to illegal detention and despite the complaint lodged with the concerned police, no steps were taken to secure the minor child.
3. When the matter is taken up for hearing, the minor child, namely, J.Pragadeesh along with his father, Jeyamurugan who is the 3rd respondent herein has been produced before this Court by the Police. The petitioner, who is the mother of the minor child, is also present.
4. We permitted the petitioner to interact with her minor child and get him from the hands of the 3rd respondent/father. But when the petitioner tried to interact her minor child and get him from the hands of the 3rd respondent, the child started crying a lot and refused to go with the petitioner/mother and showed much interest to be with his father/3rd respondent.
4. Therefore, taking note of the fact that the minor child has been with the 3rd respondent who is none other than his biological father, we are not inclined to entertain the present habeas corpus petition, which is maintainable only in the case of illegal detention and there cannot be any circumstance or situation when the custody of the child with the father can be said to be a case of illegal detention. In“ Nirmala Vs. Kulwant Singh and others ” reported in 2024 SCC OnLine SC 758, the Hon'ble Supreme Court has reiterated that the writ of Habeas Corpus in child custody matters is maintainable only when it is established that the child is being detained unlawfully by a person who is not entitled to his legal custody.
5. However, the learned counsel for the petitioner raised a contention that the minor child is not knowledgeable enough to decide which parent is better for his welfare and by applying the principle that welfare of the child is the paramount consideration, it would be in the interest of the child that the custody of the child may be given to the mother/petitioner.
6. In Nirmala's case (cited supra), the Hon'ble Supreme Court has also emphasized the requirement of a detailed enquiry regarding the welfare of the minor child and his preference and such exercise could be carried out only in the proceedings under the Guardian and Wards Act, 1890.
7. In “ Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others ”, reported in (2019) Supreme Court Cases 42, after considering the earlier cases, the Hon'ble Supreme Court has observed thus:
“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Cour
