Kamal Ghorui
PRAYAGRAJ: A mother’s habeas corpus petition was dismissed as non-maintainable by the Allahabad high court, which held that a father, as the natural guardian of a Hindu minor, cannot be considered to be illegally detaining the child even if he takes custody by force, unless such action violates a court order. The petitioner alleged that her estranged husband had forcibly taken away their two minor children at gunpoint in 2022 and had kept them under illegal detention since then, according to news agency PTI. Dismissing the plea, Justice Anil Kumar-X relied on the Supreme Court’s ruling in Tejaswini Gaud and others vs Shekhar Jagdish Prasad Tewari and others, observing that habeas corpus in child custody matters can be invoked only when the custody is illegal or without lawful authority. Appearing for the mother, Anjali Devi, counsel submitted that multiple applications had been filed before different forums seeking custody, but no effective action had been taken. The petitioner’s counsel also cited the high court’s recent ruling in Rinku Ram alias Rinku Devi and another v. State of UP and seven others, arguing that the court can exercise its extraordinary jurisdiction in the best interest of the child even when the child is in the custody of another parent. However, the state and the respondent’s counsel argued that the children had been living with their father since 2022, and that the petitioner had not pursued remedies under the Guardians and Wards Act before approaching the high court. They further submitted that custody disputes between parents are ordinarily not adjudicated in a writ petition under Article 226 of the Constitution. It was also argued that the Rinku Ram judgment was distinguishable, as in that case the child had been taken in violation of an order passed by the Child Welfare Committee directing custody to the mother—circumstances not present in the current matter. In its order dated April 10, the court noted that an offence arises only when a minor is removed from the custody of a legally recognised guardian by someone who is not a lawful guardian. Referring to Section 4(2) of the Guardians and Wards Act, the court observed that the law recognises the father as a natural guardian. In view of this, the court held that even if the allegation that the father forcibly took the children is accepted at face value, it would not amount to illegal detention.“The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract any criminality.Such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition,” the court observed. The court further noted that the children, both above five years of age, have been residing with their father since 2022, and no exceptional circumstance had been shown to suggest that their custody was illegal or harmful, warranting interference under writ jurisdiction.
