Supreme Court was considering a petition arising out of a decision in Habeas Corpus Writ by the High Court of Bombay titled as Tejaswini Gaud Versus Shekhar Jagdish Prasad Tewari wherein the Apex Court considered the legal aspect of the Writ of Habeas Corpus in the matters related to custody of the child. The Bombay High Court held that the first respondent-father of the child being the surviving parent and in the interest of welfare of the child, the custody of the child must be handed over to the first respondent-father and issued writ of habeas corpus directing the appellants to handover the custody of the minor child to respondent No. 1-father of the child.

The Supreme Court held that a Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from illegal or improper detention. It further said Writ also extends its influence to restore the custody of a  minor to his guardian when wrongfully deprived of it. Detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting the writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the Writ Court has jurisdiction to entertain such petition. 

The Supreme Court before coming to the above conclusion, heard both parties over the maintainability of the writ of habeas corpus. It noted the submission of the appellant (relative of the child) that the law is well-settled that in deciding the question of custody of minor, the welfare of the minor is of paramount importance and that the custody of the minor child by the appellants cannot be said to be illegal or improper detention so as to entertain the habeas corpus which is an extraordinary remedy and the High Court erred in ordering the custody of the minor child be handed over to the first respondent-father. Placing reliance on Veena Kapoor and Sarita Sharma and few other cases, the learned counsel for the appellants contended that the welfare of children requires a full and thorough inquiry and therefore, the High Court should instead of allowing the habeas corpus petition, should have directed the respondent to initiate appropriate proceedings in the civil court. The learned counsel further contended that though the father being a natural guardian has a preferential right to the custody of the minor child, keeping in view the welfare of the child and the facts and circumstances of the case, custody of the child by the appellants cannot be said to be illegal or improper detention so as to justify invoking extra-ordinary remedy by filing of the habeas corpus petition.

Further Supreme Court noted the arguments of the father of the minor child that in the given facts of the case, the High Court has the extraordinary power to exercise the jurisdiction under Article 226 of the Constitution of India and the High Court was right in allowing the habeas corpus petition. The learned counsel has placed reliance on Gohar Begum and. Manju Malini Sheshachalam. Contention of respondent No. 1 is that as per Section 6 of the Hindu Minority and Guardianship Act, respondent No. 1, being the father, is the natural guardian and the appellants have no authority to retain the custody of the child and the refusal to hand over the custody amounts to illegal detention of the child and therefore, the writ of habeas corpus was the proper remedy available to him to seek redressal.

Supreme Court considered the judgments of Gohar Begam v. Suggi @ Nazma Begam, reported in AIR 1960 SC 93; Smt. Manju Maiini Sheshachaiam D/o Mr. R. Sheshachaiam v. Vijay Thirugnanam S/o Thivugnanam, reported in 2018 SCC OnLine Kar 621; Dr. Veena Kapoorv. Varinder Kumar Kapoor reported in (1981) 3 SCC 92; Sarita Sharma v. Sushil Sharma reported in (2000) 3 SCC 14; Rajiv Bhatia v. Govt, of NCT of Delhi reported in (1999) 8 SCC 525 and Queen v. Clarke, (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J.

After considering these judgments, the Supreme Court came to the conclusion that 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 Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

The Apex Court further ruled that 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 cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus.

Supreme Court noted the relations of both the parties and came to the conclusion that in the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent-father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.

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