Habeas Corpus writ under Article 226 can be used for seeking Custody of Child

Shaunak Choudhury | SVKM’s NMIMS Kirit P. Mehta School of Law | 12^th June 2020

Anushree Goyal v. State of Madhya Pradesh (WRIT PETITION No. 7739/2020)

Facts

This case arose from a habeas corpus writ petition filed under Article 226 of the Constitution of India by the Petitioner seeking custody of her two-year-old child. The Petitioner married her husband in 2013 and they shifted to the U.S. (State of Columbus) where they had a child together, who was born in 2018. The Petitioner claimed that her husband and her in-laws were cruel to her and she was assaulted on several occasions. The Husband obtained an ex-parte order from an American Court that restrained the Petitioner from living in her matrimonial home which belonged to her husband. After which she returned to India and filed a police complaint. She then found out that her husband and child were back in India and her child was living with her in-laws. Even after repeated requests she was not allowed to see her child. Thus, the writ petition was filed by the mother to get custody of her child. The Respondents (in-laws) argued that the Petitioner had abandoned the child and since the father had executed a Power of Attorney and Authorization in favor of the grandparents, they were the rightful guardians of the child. An order was passed during the case that asked the grandparents to produce the child in the court for the hearings.

Issues 

1. Whether a habeas corpus writ petition can be used for gaining custody of child.
2. Whether the Petitioner should get the custody of her child.

Judgement

1. The Respondent had relied on Section 9 of the Guardians and Wards Act 1890 to bring up the issue of jurisdiction of the High Court to adjudicate upon the matter surrounding a child with U.S.  citizenship. Along with that the Respondents had also highlighted that as per the injunction order that had been passed by Franklin County Common Pleas Court, Division of Domestic Relations, Columbus, Ohio, the grandparents were the guardians of the child. The High Court rejected the argument surrounding the injunction order since the order itself was silent on the matter of the child, moreover it was an ex-parte order. 

Relying on Capt. Dushyant Somal v. Sushma Somal ((1981) 2 SCC 277), the Court said that a writ under Article 226 can be used for seeking custody of a child in peculiar facts. Even though there may be other paths that can be taken, the choice of habeas corpus would stand. 

• The Court noticed during the court proceedings that the child was much happier with his mother than he was with his grandparents. And since he was under the age of 5, as per the “tender years” rule and Section 6 of the Guardians and Wards Act, the Court found that it would be in the best interests of the child that he be with his mother. 

Thus the custody of the child was given to his mother, the Petitioner, but the Court also made it clear that in the future the parties may go to a Civil Court under Guardians and Wards Act for seeking custody, and that this case would not affect the deliberations and conclusions of that one.