TEJASWINI GAUD AND ORS. versus SHEKHAR JAGDISH PRASAD TEWARI AND OTHERS

Citation: [2019] 7 S.C.R. 335 · Decided: 06-05-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Disposed off

Cited by 7 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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TEJASWINI GAUD AND ORS.
v.
SHEKHAR JAGDISH PRASAD TEWARI AND OTHERS
(Criminal Appeal No. 838 of 2019)
MAY 06, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Hindu Minority and Guardianship Act, 1956: ss. 6, 13 –
Custody of a minor child – Writ of habeas corpus – Maintainability
of – On facts, father filed habeas corpus petition seeking custody
of minor child from the appellants-uncle and aunt of the minor child
– High Court directed issuance of writ of habeas corpus directing
the appellants to hand over the custody of the minor child to the
father – Justification of – Held: Appellants are the sisters and brother
of the mother of the child who do not have any authority of law to
have the custody of the minor child – As per s. 6, the father is a
natural guardian of the minor child and has the legal right to claim
the custody of the child – Father is the only natural guardian alive
and has neither abandoned nor neglected the child – Child went
into the custody of the appellants in unavoidable conditions, that is
due to illness of his mother and father – Merely because, the
appellants being the relatives took care of the child for some time,
they cannot retain the custody of the child – If no custody is granted
to the first respondent, the court would be depriving both the child
and the father of each other’s love and affection to which they are
entitled – As the child is in tender age i.e. 1½ years, her choice
cannot be ascertained at this stage – Keeping in view the welfare of
the child and the right of the father to have her custody and after
consideration of all the facts and circumstances of the case, the
High Court was right in holding that the welfare of the child would
be best served by handing over the custody of the child to the father
– However, till the child settles down in the atmosphere of the father’s
house, the appellants to have visitation rights – Order of the High
Court is upheld subject to the said directions.
Writ: Writ of habeas corpus – Maintainability of, in child
custody matters – Held: Writ of habeas corpus is a prerogative
process for securing the liberty of the subject by affording an
   [2019] 7 S.C.R. 335
335
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
effective means of immediate release from an illegal or improper
detention – Writ extends its influence to restore the custody of a
minor to his guardian when wrongfully deprived of it – In child
custody matters, the power of the High Court in granting the writ
habeas corpus is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal custody – In such
matters, the ordinary remedy lies only under the Hindu Minority
and Guardianship Act or the Guardians and Wards Act as the case
may be – It is only in exceptional cases, the rights of the parties to
the custody of the minor would be determined in exercise of extra-
ordinary jurisdiction on a petition for habeas corpus.
Disposing of the appeal, the Court
HELD: 1.1 Writ of habeas corpus is a prerogative process
for securing the liberty of the subject by affording an effective
means of immediate release from an illegal or improper detention.
The writ also extends its influence to restore the custody of a
minor to his guardian when wrongfully deprived of it. The
detention of a minor by a person who is not entitled to his legal
custody is treated as equivalent to illegal detention for the purpose
of granting writ, directing custody of the minor child. For
restoration of the custody of a minor from a person who according
to the personal law, is not his legal or natural guardian, in
appropriate cases, the writ court has jurisdiction. [Para 13]
[347-F-G; 348-A]
1.2 Habeas corpus proceedings is not to justify or examine
the legality of the custody. Habeas corpus proceedings is a
medium through which the custody of the child is addressed to
the discretion of the court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the writ is issued where in
the circumstances of the particular case, ordinary remedy
provided by the law is either not available or is ineffective;
otherwise a writ will not be issued. In child custody matters, the
power of the High Court in granting the writ is qualified only in
cases where the detention of a minor by a person who is not
entitled to his legal custody. In child custody matters, the writ of
habeas corpus is maintainable where it is proved that the detention
of a minor child by 

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