Habeas Corpus Plea For Visitation Rights Ordinarily Not Maintainable Where Husband-Wife Dispute Pending In Family Court: Allahabad HC

“A writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child,” a bench of Justice Dr. Yogendra Kumar Srivastava observed as it dismissed a habeas corpus plea filed by a father seeking visiting rights vis-à-vis his one-month-old child (presently in mother's custody).

The Court added that insofar as a claim regarding visitation rights is concerned, it is always open to the party concerned to avail the remedy by moving an appropriate application before the Family Court where proceedings concerning the matrimonial disputes between the parties are pending.

The case in brief

One Mithilesh Maurya (petitioner no. 1) moved the habeas corpus plea seeking visiting rights pertaining to his one-month-old infant (petitioner no. 2), presently in the custody of his wife (respondent no. 4).

The Court was informed that proceedings under Sections 9 and 13 of the Hindu Marriage Act, 1951, maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973, and a criminal case are pending between the parties.

The Court was also apprised that petitioner no. 1 and respondent no.4 (i.e., the husband and wife) have been living separately since August 2018, that their divorce proceeding is also pending before the Family Court, and that petitioner no. 2, who is a minor, is presently under the custody of her mother.

High Court's observations

At the outset, the Court stated that the writ of habeas corpus is a prerogative writ, an extraordinary remedy, evolved under common law and incorporated into our constitutional law to protect and safeguard individual liberty.

The Court stressed that proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child as this writ is in the nature of extraordinary remedy. The writ is issued where, in a particular case, the ordinary remedy provided under law is either unavailable or ineffective.

“The power of the High Court, in granting a writ, in child custody matters, would be qualified only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody,” the Court said.

Further, the Court the Court observed that petitioner no. 2 (the minor daughter) was an infant, approximately one month old, at the time her mother allegedly left the matrimonial home.

Hence, the Court noted, according to Section 6(a) of the Hindu Minority and Guardianship Act (HMGA), prima facie, the custody of a minor with their mother could not be deemed illegal.

The Court also observed that in the case at hand, since the proceedings under the HMA are pending between the parties before the Family Court, the husband could invoke the Family Court's jurisdiction under Section 26 to seek orders regarding custody of the minor and relief regarding visitation rights.

“The court where the aforesaid proceedings are pending would be empowered to pass all such orders and make provisions with regard to custody and grant of visitation rights, from time to time, in discharge of its duty relating to the care and custody of the minor keeping in view what would best serve the interest of the child,” the Court remarked.

Against this backdrop, the Court said it was not inclined to exercise its extraordinary prerogative jurisdiction to issue a writ of habeas corpus, and hence, the petition was dismissed.

Case title – Mithilesh Maurya And Another Vs. State Of Up And 5 Others 2024 LiveLaw (AB) 265

Case Citation: 2024 LiveLaw (AB) 265

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