INTRODUCTION

The Indian Law focuses on various procedures and methods for child custody, whether in cases of divorce or illegal custody of the child. One of the way that is used in Indian Law is the writ of Habeas Corpus, while the other is by way of an application to the District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class. This writ literally means “bring the body” and is used whenever there is illegal confinement of a person by the government or any private individual. The writ of habeas corpus finds its nexus from the common law by way of which a person can approach the Court for illegal confinement or detaining of a person. The person that has been illegally confined or detained is known as the ‘detenu’ for whose freedom the writ of habeas corpus is filed.

MAINTANAIBILITY OF HABEAS CORPUS

As had been said by the Hon’ble Justice Dinesh Maheshwari of the Hon’ble Supreme Court in a writ filed in the Supreme Court under A. 32 of the Indian Constitution while hearing the writ of habeas where the wife had been illegally detained by the father, an application to the District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class under S.97 Cr.P.C. is the first recourse for an illegal detention. But this remedy can only be availed once the location of the detenu is known so that a search warrant can be issued by the District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class and cognizance can be taken if the person is found having the ‘detenu’ is confinement.

But, if the detenu’s location is not within the knowledge of the then, it would be very difficult to approach the concerned magistrate, and in such circumstances, a writ of habeas corpus is maintainable as the District Magistrate First Class cannot have ambit to exceed their jurisdiction.