In the latest Judgment of Allahabad High Court, Hon’ble Mr. Justice has decided a Habeas Corpus Petition filed by the Father of Child against the mother of the child.
The Allahabad High Court has ruled that Habeas Corpus Petitions cannot be filed to settle the disputes of custody of child between parents.
Proceedings Before the Court
The minor was produced before the Court. The mother of the minor stated that the child stayed with her and in her care and custody. She told the Court that due to COvid-19 situation in Mumbai, where she was working, she had sent the child to Agra where her parents lived. She told the Court about her inclination to take care of the child.
The counsel for the respondent, father of the child, argued that the Habeas Corpus Petition could not be used to settle the issue of custody of the child. It was further argued that if the father of the child thinks he has a better claim, then he can approach the appropriate authority.
It was also argued that a Habeas Corpus petition could be used to settle the issue of custody of minors if the minor is in unlawful custody of someone.
The reasoning of the Court
The Court acknowledged the fact that as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, father and mother both are considered the natural guardians of a child.
Further the Hon’ble Judge opined that if for some reason like the welfare of the minor is not best suited to hold his custody, her custody is unlawful. If the mother’s custody cannot be held unlawful, there is no scope for this Court to issue a writ of habeas corpus.
The Court referred to the Supreme Court’s Ruling in Tejaswani Goud case, where it was held that a habeas corpus petition could be used when the custody of the child was in unlawful hands. But, in this case, the custody of the child was in the hands of its mother, who is the lawful guardian.
It was also noted by the Court that the fact that the mother was an educated lady. Even though she is not employed anywhere right now, she is capable of earning her livelihood.
The Court observed that it would not be correct to change the custody of the minor, and the child should remain with the mother. It was also stated that if the father thinks that he is better suited to take custody of the child, then he can apply to the appropriate Court.
The Habeas Corpus petition was dismissed.
Title:- Rishik Lavania And Another vs State Of U.P. And 4 Others
Case No.:- HABEAS CORPUS WRIT PETITION No. – 385 of 2020
Date of Order:- 18.09.2020
Quorum :- Hon’ble Mr. Justice J.J. Munir
Advocates:- Counsel for Petitioner:- Prashant Shukla; Counsel for Respondent:- G.A.