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The Delhi High Court has held that a court is not entitled to examine the issue of paternity in a Habeas Corpus writ petition.
The judgment was passed by a Division Bench of Justices Manmohan and Sangita Dhingra Sehgal in a petition seeking issuance of a writ of Habeas Corpus for the production of a minor child who was in the custody of one Bal Sahyog (Respondent No.3). The Petition further sought a direction to Respondent No.3 to hand over the custody of the child to the Petitioners.
It was Petitioners’ case that the child was their lost son whose custody should be handed over to them after conducting a paternity test.
The Petitioners contended that a perusal of the photographs of the parties shows a stark resemblance between their lost son and the child in question. It was also submitted that the dialect of the child resembled that of Petitioners and that the age of the child was about the same as it would have been of Petitioners’ lost son.
After hearing the Petitioners, the Court stated that the writ of Habeas Corpus essentially dealt with the freedom of the citizen against arbitrary and illegal detention.
“.. habeas corpus is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court ascertain on what ground he has been confined and to set him free if there is no legal jurisdiction for the detention. It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention.”
The Petitioner thus must show a prima facie case of unlawful detention, it added.
“The writ of habeas corpus has been described as a writ of right which is granted ex debitio justitiae, but the applicant/petitioner must show a prima facie case of unlawful detention.”
Therefore, in a petition asking for the writ of Habeas Corpus, the Court is not entitled to examine the issue of paternity, it held.
“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.”, it clarified.
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 was not maintainable.
It nonetheless stated that the Petitioners could file appropriate legal proceedings to seek a declaration as parents of the child in accordance with the law.
The Petitioners were represented by Advocate B Badrinath.
Read the Judgement: