Allahabad High Court: In the writ of habeas corpus filed for the grant of visitation rights, Dr. Yogendra Kumar Srivastava, J.* while refusing to exercise its extraordinary prerogative jurisdiction for issuance of a writ of habeas corpus, said that habeas corpus writ would not ordinarily be issued for grant of visitation rights particularly where proceedings between the parties are pending before the Family Court. Further, it emphasised that for a claim of visitation rights, it is always open to the party to avail the remedy by moving an appropriate application before the Family Court where proceedings of matrimonial disputes between the parties are pending.Background:
The petitioner’s wife left their matrimonial home along with their one-month-old infant daughter in August 2018. Several legal proceedings related to matrimonial matters in the form of proceedings under Sections and of the ; Maintenance proceedings under Section of the (‘CrPC’) were ongoing between the parties in a Family Court. The claim of the petitioner is confined to a relief for grant of visitation rights
Analysis:
After analysing the principle regarding writ of habeas corpus, the Court said that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
The Court noted that in the instant case, the minor child, soon after her birth has been in the custody of her mother who had left her matrimonial home, and is living separately since then
The Court said that the law relating to guardians and wards is governed in terms of the ,(‘GWA’) and an order regarding guardianship upon an application filed by a person claiming entitlement may be passed under the aforesaid enactment.
The Court further stated that the subject nature of disputes concerning the family, and due to the need to adopt an approach radically different from that adopted in an ordinary civil proceeding, the was enacted for establishing Family Courts for speedy settlement of family disputes and the jurisdiction in respect of suits and proceedings relating to matrimonial matters and also relating to guardianship and custody of a minor.
Discussing the objective of , (‘HMGA’) the Court said that this Act was enacted to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act is supplementary to the GWA, and in terms of Section 2 thereof its provisions are in addition to and not in derogation to the GWA.
The Court said that the minor daughter was a one-month-old infant when her mother is said to have left her matrimonial home, thus, in terms of Section of the custody of a minor with his/her mother, could not prima facie be said to be illegal.
The Court noted that the subject matter relating to custody of children during the pendency of the proceedings under the HMA is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to ‘any proceeding’ under the HMA and it gives the power to the Court to make provisions regarding custody, maintenance, and education of minor children. Thus, the Court can make such provisions in the decree as it may deem just and proper and can also pass interim orders during the pendency of the proceedings and all such orders even after passing of the decree.
The Court further noted that as the proceedings under the HMA being pending between the parties before the Family Court, the jurisdiction of the Court under Section 26 may be invoked for seeking orders with regard to custody of the minor and relief in respect of visitation rights.
The Court said that an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the court would be to ascertain whether the custody of the child is unlawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.
The Court reiterated that in matters of custody the welfare of child would be of a paramount consideration and the role of the Court in examining the cases of custody of a minor is on the touchstone of ‘principle of parens patriae jurisdiction’.
The Court said that the proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. 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. In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate court.
The Court emphasised that for a claim regarding visitation rights, it is always open to the party to avail the remedy by moving an appropriate application before the Family Court where proceedings regarding the matrimonial disputes between the parties are pending.
Thus, the Court refused to exercise its extraordinary prerogative jurisdiction for issuance of a writ of habeas corpus.
[Mithlesh Maurya v. State of U.P., Habeas Corpus Writ Petition No. 82 of 2024, Order dated 16-04-2024]
Advocates who appeared in this case:
For Petitioner: Hemalata Srivastava, Advocate.
For Respondent: G.A., Saurabh Kumar Pandey.
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