RAJESWARI CHANDRASEKAR GANESH versus THE STATE OF TAMIL NADU & ORS.

Citation: [2022] 5 S.C.R. 232 · Decided: 14-07-2022 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 12 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
RAJESWARI CHANDRASEKAR GANESH
v.
THE STATE OF TAMIL NADU & ORS.
(Writ Petition (Criminal) No. 402 of 2021)
JULY 14, 2022
[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]
Constitution of India – Art.32 – Writ of Habeas Corpus –
Object and scope of – Custody of minor children – Parties having
two minor children have been residing in the USA – As per the
petitioner-mother, the respondent no.2-father picked up the minor
children and left for Michigan, USA, from Cleveland, Ohio, without
informing her – A shared parenting plan was arrived at between
the parties by the order passed by the Court at Ohio – Case of the
petitioner is that the respondent no.2 clandestinely and with a view
to remove the children from the USA and from the joint custody of
the petitioner, left for India with the two minor children – Present
petition filed by her seeking a Writ of Habeas Corpus – Held: The
employment of the writ of Habeas Corpus in child custody cases is
not pursuant to, but independent of any statute – Jurisdiction
exercised by the court rests in such cases on its inherent equitable
powers and exerts the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and scope of the
inquiry and the result sought to be accomplished call for the exercise
of the jurisdiction of a court of equity – Primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
advanced – In the present case, the petitioner is a resident of the
USA and has acquired H1B visa via sponsorship and has a good
job in USA – She is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA – She is
comfortably settled in the USA and is accustomed to different kind
of lifestyle, culture, society, etc. – She is a hard working woman
and would be in a position to take good care of her minor children
in accordance with the shared parenting plan – Allegations levelled
by the respondent no.2 that the petitioner suffers from mental illness
appear to be wild and reckless – Even otherwise this is a highly
disputed question of fact – Further, both the minor children are
[2022] 5 S.C.R. 232
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residents of the USA – They have been brought up in the social and
cultural milieu of the USA and are accustomed to the lifestyle,
language, customs etc. of that country – Also, both the minor children
have already been enrolled in school in the USA, a special school
meant for children with remarkably high IQ – They have better
prospects of getting refined education that may ultimately enhance
their potential they already possess and are already accustomed to
and comfortable with – It will be in the interest and welfare of both
the children to go back to the USA for the purpose of their education,
etc. – Respondent no.2 directed to go back to the USA with both the
minor children and abide by the shared parenting plan as ordered
by the Court at Ohio which though, stood terminated at the instance
of the petitioner, but can be revived once again by the authorities
by going before the concerned court at Ohio – Further directions
issued – Guardians and Wards Act, 1890 – Hindu Minority and
Guardianship Act, 1956.
Doctrines/Principles – Doctrine of Parental Alienation
Syndrome – Discussed.
Child Custody – Welfare of the child – Factors to be considered
– Discussed.
Allowing the writ petition, the Court
HELD: 1. A mere reading of the provisions of the Guardians
and Wards Act, 1890 and Hindu Minority and Guardianship Act,
1956 makes it obvious that the welfare of the minor predominates
to such an extent that the legal rights of the persons claiming to
be the guardians or claiming to be entitled to the custody will
play a very insignificant role in the determination by the court.
[Para 73][258-C]
2.1 In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue which
should be taken into consideration is as to whether from the facts
of the case, it can be stated that the custody of the child is illegal.
The writ of Habeas Corpus is a prerogative writ and an
extraordinary remedy. It is a writ of right and not a writ of course
and may be granted only on reasonable ground or probable cause
being shown. The exercise of the extraordinary jurisdiction for
issuance of a writ of Habeas Corpus would

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