The Allahabad High Court observed that the Writ of Habeas Corpus is an extraordinary remedy and would be justified where the detention of minors is illegal or without the authority of law.

The Court noted that ordinarily remedy in child custody cases lies in statutory law or personal law.

The bench of Justice Yogendra Kumar Srivastava, “In child custody matters, the remedy ordinarily lies under the statutory law, or the personal law, as applicable in the facts of the case; however, in cases which justify the exercise of the extraordinary discretionary jurisdiction under Article 226, a writ of habeas corpus would be issued where it is demonstrated that the detention of minor child, is illegal or without any authority of law.”

Advocate Mohd. Nasir appeared for the Appellant and AGA-I Divya Ojha appeared for the Respondent.

Brief Facts-

The Petitioner Master Hiras is the minor son of petitioner no. 2 who was illegally detained by the respondent (wife of the brother of petitioner no. 2), who is stated to be having a strained relationship with her husband.

The Court noted that a writ of habeas corpus is the prerogative process for securing the liberty of the subject by affording effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody would have to be treated as equivalent to illegal detention to grant a writ directing custody of the minor child.

According to the Court, the law relating to guardians and wards is governed in terms of the Guardians and Wards Act, 1890, and an order about guardianship may be passed under the aforesaid enactment, upon an application filed by a person claiming entitlement.

As per the Court, the provision about making of an application regarding claims based on entitlement of guardianship is under the GWA and in Section 12 the court is empowered to make interlocutory orders for the protection of a minor including an order for temporary custody and protection of the person or property of the minor.

The Court noted that Section 17 of the GWA provided that while deciding the question of guardianship of a minor, the Court shall, as far as possible, do so consistently with the law to which the minor is subject, keeping in view the welfare of a minor. Thus, according to the Court, the provisions of the personal law are to be applied consistently with the provisions of the GWA.

The Court noted that in a petition seeking issuance of a writ of habeas corpus relating to the custody of a minor child, the principal duty of the Court would be to ascertain whether the custody of the child is unlawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child is handed over to the care and custody of some other person. In doing so, the paramount consideration would undoubtedly be the welfare of the child and the role of the High Court in examining such cases would have to be on the touchstone of principles of parens patriae jurisdiction.

The Court stated that Habeas corpus proceedings would not ordinarily lie to justify or examine the legality of the custody of the minor child, and the question in this regard would have to be addressed by the Court in the exercise of its discretionary jurisdiction. The prerogative writ of habeas corpus, is like an extraordinary remedy, and is to be issued taking into consideration, the circumstances of a particular case.

According to the Court, the child is an infant of about two years, the petitioner/ father would be the natural guardian and the biological mother of the petitioner/corpus would be entitled to a right of custody (hizanat) as per the personal law.

Accordingly, the Court disposed of the Petition.

Cause Title: Master Hiras v. State of U.P. (Neutral Citation: 2024:AHC:66661)


Appellant: Adv. Maimoona Fatima and Adv. Mohd Nasir

Respondent: AGA-I Divya Ojha

Click here to read/download Judgment