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

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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 recently 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 and above the best interest and welfare of the child.

“It is open to the court to conduct either an elaborate enquiry or a summary enquiry on the question of whether the child’s best interests would be served by repatriation. The facts and circumstances in the present case do not require an elaborate enquiry, and can be decided by summary enquiry.”

The Court found that there was no material to suggest that return of the minor child to USA would result in psychological physical or cultural harm to him.