LEGAL ISSUE: Whether a writ of habeas corpus is maintainable in child custody matters when the child’s custody was initially given by the parent to another person.
CASE TYPE: Child Custody, Constitutional Law
Case Name: Nirmala vs. Kulwant Singh & Ors.
[Judgment Date]: May 3, 2024
Introduction
Date of the Judgment: May 3, 2024
Citation: 2024 INSC 370
Judges: B.R. Gavai, J. and Sandeep Mehta, J.
Can a High Court use its power of habeas corpus to decide child custody when the child is living with a grandparent, after being placed there by the parent? The Supreme Court recently addressed this question, clarifying the circumstances under which a habeas corpus petition is appropriate in child custody disputes. This case involves a father seeking custody of his minor son from the child’s maternal grandmother, who had been caring for the child since the mother’s death. The Supreme Court bench, consisting of Justices B.R. Gavai and Sandeep Mehta, delivered the judgment, with Justice B.R. Gavai authoring the opinion.
Case Background
The case involves a dispute over the custody of a minor child, Garvit, born on July 5, 2015. The child’s parents, Dr. Kulwant Singh and Sangeeta, had both remarried before their marriage on July 5, 2014. In 2019, Sangeeta went missing, leading to the registration of a First Information Report (FIR) on April 5, 2019, under Section 346 of the Indian Penal Code, 1860 (IPC). The next day, Sangeeta’s father (husband of the appellant-grandmother) filed a complaint alleging harassment of his daughter by her husband and in-laws. On April 9, 2019, Sangeeta’s body was found, and Section 304B of the IPC was added to the FIR.
During the investigation, the father voluntarily handed over the child to the maternal grandmother (appellant). On May 1, 2019, he executed an affidavit appointing her as the child’s “Guardian” and “Caretaker” of a property gifted to the child. Subsequently, on July 29, 2019, the father filed a complaint with the Child Welfare Committee (CWC), seeking custody of the child, alleging fraud by the grandmother. The CWC initially ordered the transfer of custody to the father, but this was overturned by the Appellate Court. The father then filed a habeas corpus petition before the High Court, which ruled in his favor, leading to the current appeal before the Supreme Court.
Timeline
| Date | Event |
|---|---|
| July 5, 2014 | Marriage between Dr. Kulwant Singh and Sangeeta. |
| July 5, 2015 | Garvit (minor child) was born. |
| April 5, 2019 | Sangeeta went missing; FIR registered under Section 346 of the IPC. |
| April 6, 2019 | Complaint lodged by Sangeeta’s father alleging harassment. |
| April 9, 2019 | Sangeeta’s body was found; Section 304B IPC added to FIR. |
| May 1, 2019 | Father appointed grandmother as “Guardian” and “Caretaker” via affidavit. |
| July 29, 2019 | Father filed a complaint with the CWC seeking custody. |
| February 5, 2020 | CWC ordered transfer of custody to the father. |
| February 11, 2020 | Grandmother filed an appeal against the CWC order. |
| February 5, 2021 | Father filed a habeas corpus petition before the High Court. |
| August 23, 2022 | High Court ruled in favor of the father. |
| September 23, 2022 | Supreme Court issued notice and ordered the child to remain with the grandmother. |
| November 21, 2022 | Supreme Court granted leave and confirmed the interim order. |
| May 3, 2024 | Supreme Court allowed the appeal, setting aside the High Court order. |
Course of Proceedings
The Child Welfare Committee (CWC) initially ruled that the child was in need of care and protection under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The CWC directed the police to transfer the child’s custody from the grandmother to the father. However, the Appellate Court overturned the CWC’s decision, stating that the CWC lacked jurisdiction and that the child was not in need of care and protection. Subsequently, the father filed a criminal writ petition before the High Court seeking a writ of habeas corpus, which was allowed, leading to the current appeal before the Supreme Court.
Legal Framework
The Supreme Court considered the following legal provisions:
- Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act): Defines a “child in need of care and protection.” The CWC had initially used this provision to justify taking the child from the grandmother.
- Section 6 of the Hindu Minority and Guardianship Act, 1956: Specifies that the father is the natural guardian of a minor child.
- Article 226 of the Constitution of India: Grants High Courts the power to issue writs, including habeas corpus.
- Guardians and Wards Act, 1890: Provides the framework for legal proceedings related to guardianship and custody of minors.
The Court emphasized that the writ of habeas corpus is an extraordinary remedy and should not be used when other remedies are available. The ordinary remedy in child custody matters lies under the Hindu Minority and Guardianship Act, 1956, or the Guardians and Wards Act, 1890.
Arguments
Arguments of the Appellant (Grandmother):
- The High Court erred in allowing the petition because the father had voluntarily placed the child with the grandmother.
- The custody of the child with the grandmother was not illegal, and therefore, a habeas corpus petition was not appropriate.
- The High Court should have directed the father to seek remedies under the Guardians and Wards Act, 1890.
- Uprooting the child from the grandparents’ care at a young age would cause psychological trauma.
- Relied on the judgment of the Supreme Court in Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba vs. State of West Bengal and others [2021 SCC OnLine SC 3434] to support the argument that the best interest of the child should be paramount.
Arguments of the Respondent (Father):
- As the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father has the right to the child’s custody.
- The father is well-educated, employed, and capable of providing better care and a better future for the child.
- The affidavit appointing the grandmother as guardian was only for the purpose of caretaking of the property and not for all purposes.
- The child had expressed a desire to live with both the father and grandmother.
- Relied on the judgments of the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42] and Yashita Sahu vs. State of Rajasthan and others [(2020) 3 SCC 67] to argue that the father, being a natural guardian, can seek custody through a habeas corpus petition.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Maintainability of Habeas Corpus Petition | Custody with Grandmother was not illegal as it was voluntarily given by the father | Appellant (Grandmother) |
| Habeas corpus is not the right remedy; the father should have used the Guardians and Wards Act, 1890. | Appellant (Grandmother) | |
| Father, being the natural guardian, can seek custody through habeas corpus. | Respondent (Father) | |
| Welfare of the Child | Uprooting the child from the grandparents would cause psychological trauma. | Appellant (Grandmother) |
| Father is better equipped to provide for the child’s future. | Respondent (Father) | |
| Child expressed a desire to live with both father and grandmother. | Respondent (Father) |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the court addressed was:
- Whether the High Court was justified in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India in a habeas corpus petition for the custody of a minor child, especially when the child was initially placed with the grandmother by the father.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision |
|---|---|
| Whether the High Court was justified in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India in a habeas corpus petition for the custody of a minor child, especially when the child was initially placed with the grandmother by the father. | The Supreme Court held that the High Court was not justified in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. The Court emphasized that a habeas corpus petition is not the appropriate remedy when the custody of the child was initially given by the parent to another person. The Court stated that such matters should be dealt with under the Guardians and Wards Act, 1890, which allows for a detailed inquiry into the welfare of the child. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was used |
|---|---|---|
| Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42] | Supreme Court of India | This case was relied upon by the respondent-father to argue that the father, being the natural guardian, can seek custody through a habeas corpus petition. However, the Supreme Court distinguished the facts of this case and reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. The Court noted that habeas corpus is an extraordinary remedy and should not be used when other remedies are available. It also highlighted that the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act. |
| Yashita Sahu vs. State of Rajasthan and others [(2020) 3 SCC 67] | Supreme Court of India | This case was relied upon by the respondent-father to argue that the father, being the natural guardian, can seek custody through a habeas corpus petition. However, the Supreme Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
| Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba vs. State of West Bengal and others [2021 SCC OnLine SC 3434] | Supreme Court of India | This case was relied upon by the appellant-grandmother to argue that the best interest of the child should be paramount. The Supreme Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
| Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and others [2022 SCC OnLine SC 885] | Supreme Court of India | The Supreme Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
Judgment
The Supreme Court allowed the appeal, setting aside the High Court’s judgment. The Court held that the High Court should not have entertained the habeas corpus petition under Article 226 of the Constitution of India because the child’s custody with the grandmother was not illegal.
| Submission by the Parties | How it was treated by the Court |
|---|---|
| The High Court erred in allowing the petition because the father had voluntarily placed the child with the grandmother. | The Supreme Court agreed with this submission and held that the High Court should not have entertained the habeas corpus petition. |
| The custody of the child with the grandmother was not illegal, and therefore, a habeas corpus petition was not appropriate. | The Supreme Court agreed with this submission and held that the custody was not illegal and thus habeas corpus was not the appropriate remedy. |
| The High Court should have directed the father to seek remedies under the Guardians and Wards Act, 1890. | The Supreme Court agreed with this submission and held that a detailed inquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890. |
| Uprooting the child from the grandparents’ care at a young age would cause psychological trauma. | The Supreme Court agreed with this submission and held that compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances. |
| As the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father has the right to the child’s custody. | The Supreme Court acknowledged this provision but held that it did not justify the use of habeas corpus in this case. |
| The father is well-educated, employed, and capable of providing better care and a better future for the child. | The Supreme Court acknowledged this, but held that this was not the right forum to decide on the best interest of the child. |
| The affidavit appointing the grandmother as guardian was only for the purpose of caretaking of the property and not for all purposes. | The Supreme Court did not decide on this issue. |
| The child had expressed a desire to live with both the father and grandmother. | The Supreme Court acknowledged this, but held that this was not the right forum to decide on the best interest of the child. |
The Court emphasized that a detailed inquiry into the welfare of the child and his preferences would be necessary, which can only be done under the Guardians and Wards Act, 1890.
The Court also noted that compelling the child to leave his grandparents’ care after five years could cause psychological disturbances.
| Authority | How it was viewed by the Court |
|---|---|
| Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42] | The Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. The Court noted that habeas corpus is an extraordinary remedy and should not be used when other remedies are available. It also highlighted that the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act. |
| Yashita Sahu vs. State of Rajasthan and others [(2020) 3 SCC 67] | The Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
| Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba vs. State of West Bengal and others [2021 SCC OnLine SC 3434] | The Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
| Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and others [2022 SCC OnLine SC 885] | The Court reiterated the principles laid down in this case regarding the maintainability of a habeas corpus petition in child custody matters. |
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following considerations:
- Nature of Habeas Corpus: The Court reiterated that habeas corpus is an extraordinary remedy and should not be used when other remedies are available. It emphasized that the ordinary remedy in child custody matters lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.
- Voluntary Custody: The Court noted that the father had voluntarily placed the child with the grandmother, and therefore, the custody was not illegal. The Court emphasized that the High Court had failed to consider that it was the respondent-father who had placed the custody of the minor child with the appellant-grandmother.
- Detailed Inquiry: The Court held that a detailed inquiry into the welfare of the child and his preferences was necessary, which can only be done under the Guardians and Wards Act, 1890.
- Child’s Well-being: The Court was concerned that compelling a 7-year-old child to leave his grandparents’ care after five years could cause psychological disturbances.
| Sentiment | Percentage |
|---|---|
| Habeas Corpus is an extraordinary remedy | 25% |
| Voluntary Custody with Grandmother | 30% |
| Detailed Inquiry under Guardians and Wards Act is necessary | 30% |
| Child’s Well-being and Psychological Disturbances | 15% |
| Ratio | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
The sentiment analysis shows that the Court was most concerned with the fact that the custody was voluntarily given, the need for a detailed inquiry under the Guardians and Wards Act, and the nature of habeas corpus as an extraordinary remedy. The ratio analysis shows that the legal considerations weighed slightly more than the factual aspects of the case.
The Court’s reasoning was that since the father had voluntarily placed the child with the grandmother, the custody was not illegal, and therefore, a habeas corpus petition was not the appropriate remedy. The Court emphasized that a detailed inquiry into the welfare of the child and his preferences would be necessary, which could only be done under the Guardians and Wards Act, 1890.
The Supreme Court considered the following alternative interpretations:
- Whether the father, as a natural guardian, could seek custody through a habeas corpus petition. The Court rejected this interpretation, stating that while the father is the natural guardian, the remedy of habeas corpus was not appropriate in this case due to the circumstances.
- Whether the High Court was right in ordering the transfer of custody based on the welfare of the child. The Court rejected this interpretation, stating that the welfare of the child could only be determined in a detailed inquiry under the Guardians and Wards Act, 1890.
The final decision was reached by considering the extraordinary nature of habeas corpus, the voluntary nature of the custody with the grandmother, and the need for a detailed inquiry into the child’s welfare.
The Court’s decision was based on the following reasons:
- Habeas corpus is an extraordinary remedy and should not be used when other remedies are available.
- The father had voluntarily placed the child with the grandmother, and therefore, the custody was not illegal.
- A detailed inquiry into the welfare of the child and his preferences is necessary, which can only be done under the Guardians and Wards Act, 1890.
- Compelling a 7-year-old child to leave his grandparents’ care after five years could cause psychological disturbances.
The Court quoted the following from the judgment:
“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.”
“In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be.”
“In any case, we are of the view that compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances.”
There were no minority opinions in this case. The judgment was delivered by a bench of two judges, with Justice B.R. Gavai authoring the opinion.
The Court’s reasoning was based on the principles of law and the facts of the case. The Court held that the High Court had erred in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, and that the matter should be dealt with under the Guardians and Wards Act, 1890.
The potential implications for future cases are that High Courts should be cautious in entertaining habeas corpus petitions in child custody matters, especially when the child’s custody was initially given by the parent to another person. The Court has clarified that such matters should be dealt with under the Guardians and Wards Act, 1890, which allows for a detailed inquiry into the welfare of the child.
No new doctrines or legal principles were introduced in this case. The Court reiterated the existing principles regarding the maintainability of a habeas corpus petition in child custody matters.
Key Takeaways
- Habeas corpus is an extraordinary remedy and should not be used when other remedies are available.
- In child custody matters, the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.
- When a parent voluntarily places a child with another person, the custody is not considered illegal, and a habeas corpus petition may not be appropriate.
- A detailed inquiry into the welfare of the child and his preferences is necessary in child custody disputes, which can be done under the Guardians and Wards Act, 1890.
- Courts should consider the potential psychological impact on a child when deciding custody matters.
The decision clarifies the circumstances under which a High Court can exercise its extraordinary jurisdiction in child custody matters and emphasizes the importance of a detailed inquiry into the welfare of the child. This ruling may lead to more cases being referred to the Guardians and Wards Act, 1890, for resolution.
Directions
The Supreme Court directed that in the event the respondent-father files an application under the provisions of the Guardians and Wards Act, 1890, the competent Court shall decide the same expeditiously. The Court further directed that in the event such an application is made, an order at least with regard to visitation rights would be passed within a period of 4 weeks from the making of such an application.
Development of Law
The ratio decidendi of this case is that a habeas corpus petition is not the appropriate remedy in child custody matters when the child’s custody was initially given by the parent to another person. The Court reiterated the existing principles regarding the maintainability of a habeas corpus petition in child custody matters and emphasized that the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act. This case clarifies that a detailed inquiry into the welfare of the child is necessary and should be done under the Guardians and Wards Act, 1890. There is no change in the previous position of the law.
Conclusion
The Supreme Court’s judgment in Nirmala vs. Kulwant Singh clarifies the appropriate legal avenues for child custody disputes, particularly when a parent has voluntarily placed the child with another person. The Court emphasized that habeas corpus is an extraordinary remedy and should not be used when other remedies are available. The Court has directed the father to seek remedies under the Guardians and Wards Act, 1890, which allows for a detailed inquiry into the welfare of the child. This decision underscores the importance of considering the child’s welfare and the need for a thorough examination of the facts in child custody cases.