Oct 28, 2022

Writ Petitions and Custody of Children

Guest post by Pallavi Mohan 

Recently, the Gujarat High Court observed that the court can issue a writ of habeas corpus in cases of child custody, if it is proved that the other parent or any other person detained the child illegally or with no authority of law. 

What is the writ of habeas corpus and why is it required in a case of child custody?

A person who has been illegally detained or anyone on their behalf can file a writ petition of habeas corpus in one of the High Courts or the Supreme Court. The Court can then direct the detaining person or authority to produce such a person before the court. If the Court finds the detention to be illegal, it can direct the immediate release of the person who has been illegally detained. To know more about the writ of habeas corpus, refer to our explainer here

When separated or divorced couples cannot amicably settle on the custody of the child, one parent may take the step to remove the child from the custody and the state/country of residence of the other parent. The parent often does this without the permission of the parent who has custody. In such a case, a writ of habeas corpus can be filed asking the parent who removed the child to produce them in court. 

How is the question of custody of children generally decided in India?

Parents have equal rights over custody of children. So, the court decides who will get custody of the child between the mother and the father based on the welfare of the child. Personal laws govern the issues of separation, divorce and custody in India.

  • Where both the parents are Hindus, The Hindu Marriage Act 1956 (HMA) and the Hindu Minority and Guardianship Act 1956 (HMGA) apply in cases of child custody. As per Section 26 of the HMA, the court can pass interim orders about a child’s custody and maintenance, as per the child’s wishes wherever possible. The Court can continue to make such orders even after the proceedings are over, if a petition dealing with custody or maintenance of the child is filed.
  • Where the parents are Muslims, the mother has custody of a boy child until the age of 7 years and a girl child until she reaches puberty, even though the father is the natural guardian of the children. 
  • Where the parents are married under Christian personal law, Sections 41, 42, 43 and 44 of The Divorce Act of 1869 apply. They provide that the Court can pass interim orders to decide on the custody and maintenance of children. It is further stated that if the court thinks fit, it can place the child under the court’s protection (i.e. not grant custody to either parent). 
  • The Guardianship and Wards Act of 1890 (GAWA) is a secular law which deals with questions of custody and guardianship of children. This is also the law which governs custody cases for Parsis. Section 12 of GAWA allows the court to pass temporary orders for the custody and protection of a child. 
  • For children of those married under The Special Marriage Act of 1954, Section 38 of the Act applies. This is like Section 26 of the HMA allows for the passing of interim orders to decide issues of maintenance and custody. 

Why did the question of maintainability of the writ of habeas corpus become an issue in the case before the Gujarat High Court?

In this case, the father who had allegedly illegally removed the child from the mother’s custody challenged the maintainability of the writ of habeas corpus. He argued that a writ of habeas corpus is an extraordinary remedy and can only be exercised in cases where detention is illegal. Since the father is the natural guardian of the child under Section 6 of HMGA, he  cannot be said to be in illegal custody of the child. It was also argued that ordinary remedies under the law were available to the mother to seek recovery of custody, so the extraordinary remedy of habeas corpus would not be maintainable. 

Relying on an earlier Supreme Court judgement, the Gujarat High Court observed that habeas corpus would be maintainable in custody cases if the detention by one of the parents was illegal. Here, the child had been in the custody of the mother since she had left the matrimonial home (a fact acknowledged by the father). She had also been granted interim custody by the court. So, the act of snatching away the child from her amounted to illegal detention. The court also confirmed the custody of the child with the mother keeping in mind the paramount interest and welfare of the child, irrespective of the financial disparity between the parents. 


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