Habeas Corpus Not Maintainable in Child Custody Dispute When Guardianship Petition is Pending: Supreme Court

Introduction

Date of the Judgment: 28 July 2021
Citation: 2021 INSC 491
Judges: Hon’ble Mr. Justice Vineet Saran and Hon’ble Mr. Justice Dinesh Maheshwari. The judgment was authored by Justice Vineet Saran.

Can a writ of habeas corpus be used to seek child custody when a case for the same is already ongoing in a lower court? The Supreme Court of India recently addressed this question in a case where a father sought the custody of his children through a habeas corpus petition, even though a guardianship case was pending. The Court clarified the limits of habeas corpus in such matters, emphasizing that it is not a substitute for the regular legal channels designed for custody disputes. The bench comprised of Justice Vineet Saran and Justice Dinesh Maheshwari.

Case Background

The petitioner, Jose Antonio Zalba Diez Del Corral, a Spanish citizen, married Respondent No. 6. They had two children: a son, aged about 15 years, and a daughter, aged about 10 years. Due to marital disputes, Respondent No. 6 left the petitioner, taking the children with her. Consequently, the petitioner filed a case under Section 12 of the Guardians and Wards Act, 1890, seeking custody of the children in the 10th Additional District Judge, Alipore, Kolkata, which was registered as Case No. 88 of 2017. This case remains pending.

Additionally, Respondent No. 6 filed a case against the petitioner under the Protection of Women from Domestic Violence Act, 2005, which is also pending. In this case, a maintenance amount was initially awarded to Respondent No. 6, which was later reduced by the High Court. This maintenance issue was not a central point of contention in the present petition.

Timeline:

Legal Framework

The primary legal framework in this case involves:

• Guardians and Wards Act, 1890: Section 12 of this Act allows a person to apply for the custody of a minor. This is the primary legal avenue for resolving child custody disputes in India.
• Article 32 of the Constitution of India: This article grants the Supreme Court the power to issue writs, including habeas corpus, for the enforcement of fundamental rights.

The court also considered the nature of a habeas corpus writ, which is typically used to challenge unlawful detention. The Supreme Court had to determine if a habeas corpus petition was the appropriate remedy for a child custody dispute where a guardianship petition was already pending.

Arguments

Petitioner’s Arguments:

• The petitioner argued that the habeas corpus petition was filed to ensure the safety and best interests of the minor children.
• He contended that the children were in a COVID-19 red zone in Kolkata with the mother, whereas he could take them to Spain, which he claimed was safer with better medical facilities. He also stated that he was residing in Shantiniketan, a green zone.
• The petitioner submitted that the children were illegally taken away by the mother, depriving him of their custody.
• He argued that both parents have a right to the custody of their children, citing the cases of Soumitra Kumar Nahar Vs. Parul Nahar (2020) 7 SCC 599 and Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67.
• The petitioner requested the Court to direct the mother to hand over the custody of the children to him, despite the pending case under the Guardians and Wards Act.

State’s Arguments:

• The State argued that the writ petition under Article 32 of the Constitution was not maintainable because a petition for custody was already pending before the Trial Court.
• The State relied on the decisions in Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 and Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67, to support their argument.
• The State asserted that the pandemic situation in West Bengal was under control, and the children were safe with their mother in Kolkata.

Respondent No. 6’s Arguments:

• The counsel for the mother supported the State’s argument that the habeas corpus petition was not maintainable, especially when the custody of the children was with the mother, who is a natural guardian.
• It was argued that the petitioner had not paid the maintenance amount awarded under the Protection of Women from Domestic Violence Act, 2005, showing his lack of concern for the children’s and mother’s well-being.
• The counsel contended that if the petitioner was given custody and took the children to Spain, they would be outside the jurisdiction of the Trial Court where the guardianship petition was pending.
• It was also argued that the children were safe with the mother in Kolkata, despite the pandemic.

Amicus Curiae’s Position:

• Mr. P.S. Narasimha, the Amicus Curiae, fairly presented the legal position related to the matter.

Submissions Table

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

1. Whether the writ petition for habeas corpus is maintainable when a petition for custody of the children under Section 12 of the Guardians and Wards Act, 1890 is pending before the Trial Court?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Soumitra Kumar Nahar Vs. Parul Nahar (2020) 7 SCC 599 – Supreme Court of India
• Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67 – Supreme Court of India
• Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 – Supreme Court of India

Legal Provisions:

• Section 12 of the Guardians and Wards Act, 1890
• Article 32 of the Constitution of India
• Protection of Women from Domestic Violence Act, 2005

Authorities Considered by the Court

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the following factors:

• The existence of a pending case under the Guardians and Wards Act, 1890, which is the appropriate forum for deciding child custody issues.
• The fact that the children were in the custody of their mother, who is a natural guardian, and such custody was not deemed illegal.
• The principle that a habeas corpus writ is not to be used as a substitute for the regular legal channels.
• The court’s view that the welfare and well-being of the children can be adequately addressed by the trial court in the pending case.

The Court emphasized that the welfare of the children is paramount and can be best determined by the trial court in the pending proceedings.

The Supreme Court explicitly stated, “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.”

The Court also noted, “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.”

The Court further clarified, “It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”

Key Takeaways

• A writ of habeas corpus is not a substitute for the regular legal channels in child custody disputes, especially when a petition under the Guardians and Wards Act is pending.
• The custody of a child with a natural guardian (usually a parent) is not considered illegal unless proven otherwise.
• The welfare of the child is paramount, and the appropriate forum for determining custody is the court where the guardianship petition is pending.
• Habeas corpus petitions in child custody matters are maintainable only in exceptional cases where the detention of a minor is illegal and without any authority of law.

Directions

The Supreme Court directed the 10th Additional District Judge, Alipore, Kolkata, to hear and decide the pending case No. 88 of 2017 as expeditiously as possible, preferably within six months from the filing of a certified copy of the order, along with an application for expeditious disposal.

Specific Amendments Analysis

There were no specific amendments discussed in this judgment.

Development of Law

The ratio decidendi of this case is that a habeas corpus petition is not maintainable in child custody disputes when a guardianship petition is pending, and the child is in the custody of a natural guardian. This reaffirms the principle that habeas corpus is not a substitute for the regular legal channels designed for custody disputes.

Conclusion

The Supreme Court dismissed the habeas corpus petition filed by the father, emphasizing that the proper legal avenue for resolving child custody disputes is through the Guardians and Wards Act, 1890. The Court clarified that a habeas corpus petition is not maintainable when a custody petition is already pending, and the child is in the custody of a natural guardian. The Court directed the trial court to expedite the pending custody case.