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ABOUT THE AUTHOR
Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.
He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.
This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.
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.
Putting it in simple words, this remedy can only be availed if the location of the ‘detenu’ is known to be with a particular person. If this is not the scenario, then the writ of habeas corpus is filed in the High Court of judicature where the jurisdiction lies.
PARAMOUNT INTEREST OF CHILD TO BE KEPT IN CONSIDERATION
Though the parents’ sentiments are to be kept in mind while determining the custody of the child, the child’s desire and the environment that can be provided by the parent for proper nurturing of the child is of utmost importance. The same had been clarified by the Supreme Court of India in judgment case titled as Gaytri Bajaj v. Jiten Bhalla[1] wherein it had been heldthat the desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor.
The courts have reiterated time and again that the welfare and the paramount interest of the child is something that has to be given utmost importance while determining the custody of the child. The Supreme Court of India had clarified the same in judgment case title asRosy Jacob v. Jacob A. Chakramakkal[2] wherein it had been held that in considering the question of welfare of minor, due regard has, of course, to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
The writ of habeas corpus is a special recourse available in custody cases. That the Supreme Court of India has also clarified in judgment case title asTejaswini Gaud v. Shekhar Jagdish Prasad Tewari[3] in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
Parents are the first teachers of a child and every habit inculcated including the subsequent thinking ability and mind set of the child is all dependent upon the approach the parents adopt for nurturing and upbringing the child. The Supreme Court of India has clarified in the judgment case titled as Vivek Singh v. Romani Singh[4] that a negative approach adopted by any parent is a significant factor weighing against him/her while considering grant of custody of the child by the court.
The courts adopt a sensitive approach in determining the custody of a child/minor and welfare of the child that is given utmost importance in these cases. The Supreme Court of India had clarified in judgment case titled as Prateek Gupta v. Shilpi Gupta[5]thatirrespective of summary or elaborate inquiry to be undertaken by a High Court, the welfare of the child must prevail as foremost overriding consideration, while pre-existing foreign court’s order must be taken as one of the factors for deciding the question of custody. Applicability of doctrines/principles of “comity of courts”, “intimate contact” and “closest concern” would depend upon various attendant facts and circumstances, keeping in mind primacy of welfare of the child.
There are certain factors that have to be determined by the High Court in custody cases by way of a writ of habeas corpus. The Supreme Court of India had clarified in judgment case titled as Nithya Anand Raghavan v. State (NCT of Delhi)[6] that in a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the person having custody to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se.
There are certain things that have to be kept in mind while determining the custody of a child and one of these is the parent alienation syndrome. This syndrome refers to the unjustified disdain of a child towards a parent. It is used as an argument in child custody battles, to say that the child is biased against one parent due to this syndrome. Initially, it was developed as an explanation for false sexual abuse allegations that a child may levy against a parent. However today, especially in India, it is being used in simple custody battles where the child does not want to live with a parent.
The scenario of child custody was seen from a different view point by the Supreme Court in the case of Soumitra Kumar Nahar v. Parul Nahar[7] wherein Justice Ajay Rastogi and Justice AM Khanwilkar that in battle of custody, no matter which parents wins the battle, the child for whose custody the battle is being fought is always on the losing end. It was also said by the Supreme Court that while deciding the welfare of the minor, it is not the view of the spouse alone which has to be taken into consideration, the courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.
There are cases of custody where comity of courts is also kept in mind including the welfare of the child. A similar scenario was observed by the Supreme Court in Perry Kansagra v. Smriti Madan Kasangra[8] wherein acceptability was given to a mirror order passed by the courts of Kenya in Nairobi and it was held that a mirror order for custody passed by the courts in Kenya would have an auxiliary one to support the order passed by the Indian Supreme Court. A mirror order is a reciprocal order made in one country based on an order issued in another country.
In the case of Ruchi Saran v. Sujoy Ghosh[9] the Hon’ble Supreme Court has iterated that article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice. In the exercise of these powers, the arrangement which has been arrived at during the pendency of the proceedings should be modified so as to best sub serve the interests of the child.
This case also brought with itself the idea of visitation rights being exercised via electronic mode i.e. by using a video conferencing platform for one hour each on every Saturday and Sunday and for five to ten minutes on other days.
It had been also stated by Hon’ble DY Chandrachud J. that the act of maternal grandparents residing with the minor, does not transfer the custody of the child, either as a matter of law or as a matter of fact, from the parent to the maternal grandparents.
The fundamental right can be enforced by parent of any minor while enforcing the right to recover the detenu from illegal custody of any relative or third party who has detained the minor without consent of parent and these conditions subject to S. 6 of the Hindu Minority And Guardianship Act, 1956 whereas the mother is being declared as the legal guardian over the natural guardian i.e. father up to 5 yeas and Punjab and Haryana High Court in Mandeep Kaur v. State of Punjab[10] has interpreted the dictum of applicability of habeas corpus against the father. The second scenario where the habeas corpus is not maintainable if the detenu i.e. minor child is detained by any person illegally/ under illegal custody, the affected/aggrieved party has the right to assail S. 97 Cr.P.C. if the place of detention is within the knowledge of aggrieved party in the concerned district. Otherwise, the habeas corpus is to be the only remedy to protect the life and liberty of the detenu.
[1] (2012) 12 SCC 471.
[2] (1973) 1 SCC 840.
[3] (2019) 7 SCC 42.
[4] (2017) 3 SCC 231.
[5] (2018) 2 SCC 309.
[6] (2017) 8 SCC 454.
[7] CIVIL APPEAL NO(S).1670 OF 2020 or CIVIL APPEAL NO(S).1671 OF 2020.
[8] CIVIL APPEAL NO. 3559 OF 2020.
[9] C.A. No.-003544-003545 / 2020.
[10] CRWP NO. 1423 OF 2019.