SUPREME COURT DISMISSES HIGH COURT ORDER ALLOWING HABEAS CORPUS PETITION, DUE TO AVAILABILITY OF ALTERNATE REMEDY IN CHILD CUSTODY MATTERS

A two-Judge Bench of the Supreme Court comprising of Justice B. R. Gavai and Justice Sandeep Mehta passed a Judgment dated 03-05-2024 in the matter of Nirmala vs. Kulawant Singh & Ors, Criminal Appeal No.2194/ 2022 and observed that the High Court’s decision to entertain the Petition under Article 226 of the Constitution of India was unjustified. Additionally, the Bench clarified that any observations made in the previous and current Judgment would not be binding in proceedings initiated by the Respondent-Father under the Guardians and Wards Act, of 1890 (the Act).

FACTS:

i) That the aforesaid Appeal was filed before the Apex Court by one, Nirmala (Appellant- Grandmother) against one Kulawant Singh (Respondent No. 1- Father), the State of Haryana (Respondent No. 2), the Child Welfare Committee (Respondent No. 3), the Station House Officer (SHO), Police Station Sadar (Respondent No. 4), who challenged the decision of the Hon’ble High Court of Punjab and Haryana, Chandigarh (High Court) which, vide, Order dated 22.08.2022, allowed the Petition filed under Article 226/227 of the Constitution of India, by the Respondent No.1-Father.

ii) Dr Kulwant Singh, (Respondent No.1-Father), married one, Sangeeta, the mother of the Minor Child on 05.07.2014. This Marriage marked the second marital union for both individuals. From the said Marriage, a Child named Garvit (Child) was born on 05.07.2015.

iii) In 2019, Sangeeta, went missing. Consequently, on 05.04.2019, a First Information Report (FIR) was lodged under Section 346 of the Indian Penal Code (IPC) 1860 (Wrongful confinement in secret). Further, on 06.04.2019, Sangeeta’s father filed a Complaint at the Women Police Station, Rohtak, expressing concerns about her disappearance and alleged harassment by her husband and in-laws.

iv) On 09.04.2019, Sangeeta’s body was discovered in a canal, prompting the addition of Section 304B IPC (Dowry Death) to the FIR. Subsequently, the Police conducted further investigations, culminating in the submission of a Cancellation Report before the competent Court on 31.08.2021 to drop the charges of Section 304-B IPC.

v) During the investigation phase, Respondent No.1-Father voluntarily entrusted the custody of the Minor Child to the Appellant, who is the Maternal Grandmother of the Minor Child. Additionally, through an Affidavit dated 01.03.2019, he designated the Appellant-Grandmother as the “Guardian” of the Minor Child and the “Caretaker” of property gifted to the Child by the Respondent No.1- Father’s aunt, Birmi Devi.

vi) Subsequently, on 29.07.2019, the Respondent No.1-Father filed an Application/Complaint No. 3312 with the Child Welfare Committee (CWC) in Rohtak, seeking custody of the Minor Child on the grounds of alleged deceit and fraud by the Appellant-Grandmother.

vii) The CWC considered the Affidavit and conducted counselling sessions, recorded statements from relevant parties, including the Appellant-Grandmother, Respondent-father, and other family members etc.

viii) Based on the statements, counselling affidavits, and available documents, the CWC, vide an Order dated 05.02.2020, determined that the Minor Child qualified as “a Child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Consequently, the CWC directed the Station House Officer (SHO) to transfer custody of the Minor Child from the Appellant’s Grandmother to the Respondent No. 1-father.

ix) Aggrieved by the Order dated 05.02.2020 of the CWC, the Appellant-Grandmother filed a Criminal Appeal No. 93/2020 before Ld. Additional Sessions Judge, Rohtak on 11.02.2020, and challenged the CWC’s Order of 05.02.2020, under Section 101 of the JJ Act (Appeals against orders of the Juvenile Justice Board).

x) The Appellate Court, passed an Order in favour of the Appellant-Grandmother, overturning the CWC’s Order. The Court concluded that the Minor Child did not meet the criteria of “a Child in need of care and protection” as defined under Section 2(14) of the JJ Act, and that the CWC lacked jurisdiction to issue Orders concerning the Child.

xi) Aggrieved by the Order of the Appellate Court, Respondent No. 1-Father filed a Criminal Writ Petition [CRWP-1485-2021 (O&M)] before the High Court on 05.02.2021, invoking Article 226/227 of the Constitution of India. The Petitioner sought issue of Writ of Habeas Corpus for the release of the Minor Child from the alleged illegal custody of the Appellant-Grandmother.

HIGH COURT:

I) The High Court, in its impugned Order dated 23.08.2022, underscored the paramount principle that the “welfare of the Child is of paramount consideration.” In light of this principle, the learned Single Judge allowed the Petition filed by the Respondent No.1-Father.

II) Further, the High Court, while considering the age of the Child, who was 7 years old at the time, concluded that the Child’s best interests would be served by being in the custody of the Father. Additionally, the High Court granted visiting rights to the Appellant-Grandmother and her husband, stipulating that they could visit the Child’s residence for a period of at least 8 hours once a month for the next year.

III) Moreover, the High Court kept open the option for the Parties to avail themselves of any remedy available under special laws, in accordance with the prevailing legal provisions.

SUPREME COURT:

Aggrieved by the High Court Order dated 23-08-2022, the Appellant filed Criminal Appeal No.2194 of 2022 before the Supreme Court. The Apex Court vide Order dated 03-05-2024 held as follows:

ISSUES:

A) The issue before the Supreme Court in this case revolved around the jurisdiction of the High Court to entertain a Habeas Corpus Petition under Article 226 of the Constitution of India concerning the custody of a Minor Child.

B) Whether the High Court was justified in entertaining such Petition and granting custody of the Minor Child to the Respondent No.1-Father, despite the Child having been in the custody of the Appellant-Grandmother for a significant period.

C) Whether the welfare of the Child would be best served by maintaining the status quo or by granting custody to the Respondent No.1-Father.

OBSERVATION:

1) The Apex Court referred to previous Judgments, emphasized that Habeas Corpus is an extraordinary remedy and should only be resorted to when the ordinary remedy provided by law is unavailable or ineffective. Further, the Bench held that in child custody matters, the power of the High Court to grant the writ is limited to cases where the detention of a minor is by someone not entitled to their legal custody.

2) The Supreme Court reiterated that the ordinary remedy for child custody matters lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, 1890. Thereafter, the Apex Court emphasized the importance of the child’s welfare and stated that if a detailed inquiry is required, the Court may decline to exercise extraordinary jurisdiction and direct the parties to approach the Civil Court.

3) Subsequently, the Bench held that in the present case the Respondent No.1-Father himself acknowledged that the Child’s placement with the Appellant-Grandmother was necessary due to psychological and social reasons. Thus, it was evident that the Appellant-Grandmother had not illegally retained custody but had been entrusted with it by the Respondent-Father.

4) However, the Supreme Court stated that the High Court should not have entertained the Habeas Corpus Petition under Article 226 of the Constitution. The Apex Court held that such detailed inquiries, especially regarding the welfare of the Child, should be conducted under the Guardians and Wards Act, 1890. The Supreme Court expressed concern over the potential psychological impact on the Child of being separated from grandparents with whom they had lived for a significant period.

5) The Bench suggested a graded approach to promoting the bond between the Child and the Respondent No.1-Father, which would be better suited for proceedings under the Guardians and Wards Act.

CONCLUSION:

Accordingly, the Supreme Court quashed the impugned Judgment of the High Court dated 23.08.2022 and directed that any proceedings initiated by the Respondent No. 1-Father under the Guardians and Wards Act, 1890 be decided on their own merits.

Further, the Bench directed that any Application filed under the Act should be processed promptly, and a decision, particularly regarding visitation rights, should be made within four weeks from the submission of such an application.

 

Sakshi Raghuvanshi

Legal Associate

The Indian Lawyer