Being Biological Father Alone Doesn't Justify Habeas Corpus For Child's Custody When Guardianship Case Is Pending: P&H High Court

The Punjab and Haryana High Court has dismissed a habeas corpus petition filed by a father seeking custody of his minor son from the child's maternal grandparents and uncle, holding that the dispute involved contested facts and was already pending before a competent guardianship court.

Justice Sumeet Goel observed that "the mere fact that the petitioner is the biological father of the child in question cannot, by itself, justify exercise of the extraordinary jurisdiction of this Court to direct immediate transfer of custody" in a habeas corpus petition, particularly when a petition under the Guardians and Wards Act was already pending.

The petitioner married in March 2019, and his son was born in March 2020. His wife died in May 2022, when the child was about two years old. According to the petitioner, the child thereafter lived with him and was studying at a school in Sonipat.

He alleged that on June 30, 2023, the child's maternal grandfather, maternal uncle and maternal grandmother took the boy to Patiala, assuring that he would stay with them for only five to seven days, but then refused to return him despite repeated requests.

The petitioner initiated proceedings under Section 97 CrPC before the Sub-Divisional Magistrate, Sonipat, who, by order dated April 22, 2024, directed that the petitioner take responsibility for the child, but asked him to approach the competent court on the question of the child's welfare and custody. Police from Sonipat accompanied the petitioner to Patiala in July 2024 to enforce the order, but the child remained with the maternal family. Meanwhile, the maternal grandmother had filed a petition under Section 25 of the Guardians and Wards Act at Patiala, the maintainability of which the petitioner has questioned.

Counsel for the petitioner argued that as the biological father and natural guardian, the petitioner had a preferential right to custody, and that the maternal family's retention of the child against his wishes was illegal.

The maternal family contended that the child was taken to Patiala with the petitioner's consent, given his tender age after his mother's death, and that they had been caring for his daily needs since the petitioner works as a truck driver. They argued that the SDM had himself relegated the petitioner to the competent court, and that the High Court was not the appropriate forum while guardianship proceedings were pending.

Habeas corpus not a substitute for guardianship proceedings

The Court relied on its earlier decision in Veerpal Kaur v. State of Punjab, which held that habeas corpus jurisdiction in child custody matters is premised on the custody being demonstrably illegal, and that the writ "is not a substitute for the comprehensive and evidence based procedures" available under guardianship statutes.

Reiterating that the welfare of the child is the paramount consideration, the Court noted that assessing welfare requires examination of evidence, personal interaction with the child and, in appropriate cases, expert testimony, a process "inherently reserved for a Court of first instance and not suited for summary nature of writ jurisdiction."

The Court held that where a competent court is already seized of the custody question, the High Court would not be justified in interfering. Its scope under Article 226 in such cases is "exceedingly narrow," limited to grave and immediate exigencies, where the writ court may at most provide interim measures as a "transitional bridge" until the parties approach the statutory forum.

Disputed facts, no imminent threat

The Court noted that the maternal family's claim that the child was taken with the father's consent, and the competing claims over who could best care for him, raised disputed questions of fact that could not be decided in writ jurisdiction. It also held that the SDM's order did not amount to a final adjudication of the parties' rights to permanent custody.

Finding no "imminent or extraordinary threat perception" warranting interference, the Court observed that the allegations were yet to be tested before the competent forum. It added that while its writ powers are plenary, "this wide latitude does not grant a license to bypass established statutory schema."

Dismissing the petition, the Court directed that the competent court shall independently examine the rival claims and decide custody with the child's welfare as the paramount consideration, uninfluenced by its observations.

Appearance: Mr. Sanjay Ghalawat, Advocate for the petitioner. Mr. Gaurav Gurcharan S. Rai, Senior DAG, Punjab. Mr. Arun Kumar Gupta, Advocate for respondent Nos. 4 to 6.