The Supreme Court emphasized on Friday that courts handling habeas corpus cases involving minors should not treat the child as "movable property" and must consider the potential impact of disturbing their custody before making any decisions regarding transfer.
A habeas corpus petition is filed to seek a court order for the production of a person who is missing or has been unlawfully detained.
A bench comprising Justices A.S. Oka and A.G. Masih emphasized that such matters cannot be handled mechanically; the court must act with humanitarian considerations in mind.
"When the court deals with the issue of habeas corpus regarding a minor, the court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child," the bench said.
The Supreme Court delivered its verdict in a case concerning the custody of a two-year-seven-month-old girl, whose mother died under unnatural circumstances in December 2022. Currently, the child is in the care of her maternal aunts. The case reached the Supreme Court after a petition challenged a June 2023 judgment by the Madhya Pradesh High Court, which had directed that custody be transferred to the child’s father and paternal grandparents.
The bench noted that in July 2023, the Supreme Court had stayed the High Court's decision. It also observed that the High Court was dealing with a child who had been in the custody of her maternal aunts since the age of 11 months, following her mother's death.
"It is apparent that the high court has not dealt with and considered the issue of the welfare of the child. The high court has disturbed the child's custody based only on the father's right as a natural guardian," the bench noted.
"We believe that considering the peculiar facts of the case and the child's tender age, this is not a case where custody of the child can be disturbed in a petition under Article 226 of the Constitution of India," it said.
The bench clarified that only through substantive proceedings under the Guardians and Wards (GW) Act, 1890 can the appropriate court make decisions regarding child custody and guardianship. It pointed out that a regular civil or family court handling child custody matters is better positioned to make these decisions, as it can regularly interact with the child.
The bench further noted that, at this stage, it would be challenging to determine whether disrupting the custody arrangement with the maternal aunts would serve the child's welfare.
"The child has not seen the father and grandparents for over a year. At the tender age of two years and seven months, if custody of the child is immediately transferred to the father and grandparents, the child will become miserable as the child has not met them for a considerably long time," it said.
The Supreme Court directed that, beginning September 21, the maternal aunts must bring the child to the office of the District Legal Service Authority (DLSA) secretary in Panna, Madhya Pradesh, on the first, third, and fifth Saturdays of each month at 3 pm. Under the supervision of the DLSA secretary, the father and grandparents will be allowed to meet the child until 5 pm.
"As assured to the court, the appellants or some of them shall file a petition seeking a declaration of guardianship and permanent custody of the child under the provisions of the GW Act before the competent court within a maximum period of two months from today," it said.
