Habeas corpus is not available to question the correctness of a decision of the legally constituted court of competent jurisdiction, the bench said.
The Karnataka High Court has observed that habeas corpus cannot be granted when a person has been committed to custody under an order from a competent court.
The father had filed the petition seeking the release of his 3-year-old child who, according to him, is in illegal custody of mother. The mother had obtained interim custody order of the child from the family court.
Dismissing his plea, a bench comprising Justice Ashok B Hinchigeri and Justice KS Mudagal observed that habeas corpus is not available to question the correctness of a decision of the legally constituted court of competent jurisdiction and it is also unavailable when the child is in the custody of the mother under the process issued by a competent court of law in pursuance of a subsisting order.
“If according to the petitioner, the Family Court’s order is illegal, the same is to be challenged in appropriate proceedings,” said the court, rejecting the contention that the family court order granting interim custody to the mother is illegal.
The court further observed: “The writ of habeas corpus is used primarily to secure the release of a person, who has been detained unlawfully or without any legal justification. Where the rights of a detenu either under the Constitution or under other laws are violated, the writ power of the court can and must run to his rescue. But habeas corpus is not granted when a person has been committed to custody under an order from a competent court.”
Read the Judgment here.