The Delhi High Court has held that the issue of paternity cannot be determined in a habeas corpus proceeding.
The Court was dealing with a habeas corpus petition filed by a couple claiming that a child in the custody of Bal Sahyog - a child care NGO- was their child. They claimed that the child bore resemblance to their lost child and that the age of the child was about the same as it would have been of their lost son.
They sought for custody of the child after a paternity test.
However, the division bench of Justices Manmohan and Sangita Dhingra Sehgal declined the prayer holding that it went outside the scope of habeas corpus jurisdiction. Habeas corpus petition was essentially concerned with unlawful detention of a person.
"in a petition asking for the writ of Habeas Corpus, the Court is not entitled to examine the issue of paternity.The primary consideration of the Court in a writ petition for custody of a minor is not the legal right of this or that party, but the welfare of the minor", said the Court.
"Since neither the welfare of the child nor his unauthorised and/or illegal detention was an issue in the present case, the Court held that the writ petition is not maintainable", the Court added.
However, the petitioners were given liberty to invoke other appropriate legal remedies for their relief.
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