Daniyal Qureshi | Symbiosis Law School Pune | 12th April 2020
Tejaswini Gaud and Ors v. Shekhar Jagdish Prasad Tewari and Ors.
Facts
Father, Respondent No.1 of the child Shikha, is the sole surviving parent of the child.
The mother of the child suffered from Breast cancer and while she was undergoing treatment the father was diagnosed with tuberculosis and was hospitalized. In that period the Appellant, the aunt of the child took care of the child. Subsequently the treatment of the Mother, Zelam was no longer efficient and she was shifted to her paternal home where she passed away after some time. Subsequently, the father attempted to take his child back to his house but was denied custody.
Aggrieved by the actions of the appellant the father preferred a writ petition before the High Court of habeas corpus for the custody of his daughter which was allowed.
Aggrieved by the decision of the High Court the appellant has filed this present appeal before the Supreme Court
Issues
Whether a writ petition of habeas corpus is maintainable to acquire the custody of a child.
Judgement
The Appellant contends that the writ petition of habeas corpus is not maintainable. The appellant contends that the custody of the minor child with the child’s maternal family cannot be treated like an illegal detention of the child’s person and therefore the writ of habeas corpus is an abuse of the legal procedure in the present matter and that the writ does not stand valid when there is a more efficacious legal remedy under the Hindu Minority and Guardianship Act 1956. The appellant contested that the Custody the child is not a matter of legal rights but solely a matter of the interest of the child. It is an established principle of law that welfare of the child is the paramount consideration while deciding the custody of the child.
The Respondent on the contra contested that The High Court was right in granting the leave of the Writ Petition of Habeas Corpus. The counsel contends that the Father of the child has the foremost preferential right of custody after the mother in Under the Hindu Minority and Guardianship Act 1956 and that refusing to hand over the child to their father in the absence of any legal authority was an illegal detention of the child and that it is the onus of the party who is not the parent to initiate a proceeding for custody not the parent.
The court laid down that the purpose of a habeas corpus petition is not to examine the legality of the custody and that it is the prerogative of the High Court to grant a habeas corpus when the child’s custody rests with a person who does not have the legal right to it.
The Court also took note that the father had never violated the interest and welfare of the
child and had not denied her love and affection. The appellants had merely taken care of the child when both the parents were sick and on account of treatment were unable to take care of their child. Therefore, the question of the welfare of the child is too satisfied.
Appeal is denied.
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