Habeas Corpus cannot lie against mother who has custody of child: Supreme Court rejects father's plea

The Supreme Court on Monday pulled up a child's father involved in a transnational custody battle with the mother, questioning the rationale behind filing a Habeas Corpus to get custody of the child currently staying with the mother (Amit Gulrajani v. State of Haryana) .

. A Bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli questioned as to how a "mother can be an illegal detainer?"

. " How can you file a Habeas Corpus petition? She is with her mother. How can the mother become an illegal detainer? Is the girl a table or chair that she can be moved to Singapore back, " asked Justice Surya Kant.

The Court proceeded to hold that the family court is the appropriate authority to decide the issue of custody, even in cross-border custody disputes.

. The parties to the case had gotten married in Gurugram, India in 2010 and soon after the marriage, shifted to Singapore. In July 2011, the couple was blessed with a daughter. However, the relationship between them soured and the wife left Singapore for India with the child in 2019 alleging domestic abuse.

The husband initiated custody proceedings in Singapore after the wife had left while she filed a guardianship petition in Gurugram. Singapore court passed an order directing the minor child be returned to Singapore and granted joint custody to the parties.

Since the wife was afraid to return, she continued staying in India. The husband then filed a Habeas Corpus petition before the Punjab & Haryana High Court.

The High Court while dismissing the same held that since the child is in the custody of her natural guardian, it cannot be termed as illegal detention and directed the husband to approach the competent authority under Guardians & Wards Act.

The husband then moved the Supreme Court by way of a Special Leave Petition assailing the order of the High Court. The chief question before the Supreme Court were whether there was any illegal detention or not and whether a Habeas Corpus plea would be maintainable in such a case.

. Senior Advocate Geeta Luthra appeared along with Advocates Virender Tarun, Chirag Mahalwal, Kamakshi Gupta and Advocate Apoorva Maheshwari for the wife.

It was submitted that the wife had to leave Singapore after she was threatened by her husband and that proceedings for guardianship are already pending. It is only the family court which can adjudicate on custody after an elaborate enquiry in the facts and circumstances of the case, it was contended.

The Court agreed stating said that such a petition would not be maintainable.

CJI Ramana at one point observed that parents ego would kill the child.

" It feels like because of your ego you want to kill the child ," said CJI.

"This is most unfortunate," added Justice Kohli.

. The top court, therefore, rejected the plea but directed that the proceedings in the subordinate court be completed within six months.

. [Read Order]

Habeas Corpus cannot lie against mother who has custody of child: Supreme Court rejects father's plea

Debayan Roy

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