Alternate Remedy Available, No Exceptional Circumstance Made Out: Rajasthan High Court Dismisses Habeas Corpus Plea For Minor Son's Custody

Rajasthan High Court has recently clarified that habeas corpus petitions in custody disputes of children are usually not maintainable when an alternative remedy under the statute is available and the custody dispute has been persisting for quite a long time.

“…ordinarily, in relation to a claim for custody of a child, there is effective remedy provided under the Statute, in which the detailed inquiry is to be conducted and final conclusion is to be arrived at while keeping into consideration, in particular, the welfare of a minor child… custody issues which exist for a long period of time, as involved herein, may not be dealt with, in habeas corpus petition, except under certain extraordinary circumstances.”, the bench sitting at Jodhpur observed while delivering the judgment.

The Division Bench comprising Dr Justice Pushpendra Singh Bhati and Justice Rajendra Prakash Soni observed that habeas corpus petitions are maintainable only in 'exceptional circumstances' and would include instances where illegal detention of the minor child is proved substantially. However, the court noted that the petitioner and his wife were living separately for quite some time soon after the birth of their son. After the wife died in 2023, the child had been living with his maternal grandparents. Such a situation doesn't warrant the court's exercise of powers under Article 226, the Division Bench held.

The court noted that both the father and the mother had been living separately since 2020 and the father did not have custody of the child for over four years succeeding the point of separation. In such circumstances, there does not arise the need for an immediate adjudication on the issue of custody, that too by way of a habeas corpus plea.

The issues raised in a habeas corpus petition for the custody of a child will always depend upon the factual matrix of the case; any recent changes with regard to the custody can be of importance to the paramount welfare of the child, the court opined. If such a sudden and recent change in the custody of a child impacting his/her welfare can be brought to the court's attention, there are chances that it requires adjudication under Article 226, the court laid down in unequivocal terms.

Be that as it may, in the case at hand, there is nothing to show that the father was deprived the custody of his son anytime recently, the court pointed out. Ever since the separation, the child was living with the family of the deceased wife and the father has not played any role in his upbringing, the court further observed. The child, therefore, cannot be said to be under 'illegal detention' that warrants the court's intervention, the court said.

Relying on the apex court's decision in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors (2019) 7 SCC 42, the court inferred that habeas corpus plea will be available only when no ordinary or efficacious remedy is available. Before the High Court, the senior counsel appearing for the respondents had argued that an appropriate remedy was available for the petitioner under the Hindu Minority & Guardianship Act, 1956.

The court felt that there are no 'exceptional circumstances' and a habeas corpus plea cannot be the means to reach a conclusion about the welfare and prospects of the child. The Division Bench also emphasised that the paramount welfare of the minor child must be assessed via a detailed enquiry before the competent court, where the petitioner will be able to raise all the relevant legal issues.

“…Thus, in light of the aforesaid observations and looking into the factual matrix of the present case as well as the aforementioned precedent laws, the present petition is dismissed on the sole ground of its maintainability in the form of habeas corpus petition”, the court concluded the habeas corpus petition is not maintainable for the lack of 'extraordinary circumstances'.

Senior Advocate Rajesh Panwar assisted by Advocate Ayush Gehlot represented the petitioner-father. The respondent state was represented by AAG M.A Siddiqui and Advocate Rohit Mutha. Senior Advocate Dhirendra Singh and Advocate Priyanka Borana appeared for the other respondents.

Case Title: Dharmendra Choudhary v. The State of Rajasthan, Through Secretary- Home Department & Ors.

Case No: D.B. Habeas Corpus Petition No. 376/2023

Citation: 2024 LiveLaw (Raj) 31

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