Writ Of Habeas Corpus Can Be Issued For Restoration of Custody of Minor to the Parent Wrongfully Deprived Of It: Punjab And Haryana High Court

[02 September 2021]

Holding that habeas corpus can be issued for restoration of custody of minor to the parent wrongfully deprived of it, the Punjab & Haryana High Court granted relief to a father who had filed a petition alleging illegal custody by his wife and her parents. The High Court went on to rely on the Supreme Court’s observation in Yashita Sahu Vs. State of Rajasthan and others wherein it had rejected the contention that a writ of habeas corpus was not maintainable if the child is in the custody of another parent and held that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. “Exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents.” The Court thus re-iterated that the welfare of the child was of paramount consideration. The fact that there was a pre-existing custody order of a foreign court was a factor that was to be reckoned in favour of the Petitioner but would not be determinative of the question of repatriation over and above the best interest and welfare of the child.