Writ of Habeas Corpus and Child Custody

Child Custody

While dealing with the question of child custody laws in India sometimes it comes on my path to choose between what way or law we choose to pursue the case, sometimes we go with the regular law i.e. is Guardian and Ward Act or sometimes we go with the article 226 of the constitution of India for seeking the writ of habeas corpus. Now there we face the question of how we go with the writ of habeas corpus, technically is it possible to seek a writ of habeas corpus while the child is with one of the parents, how it is illegal custody if the child is with the mother or father. I am trying to conceptualize this question and trying to answer it.

While answering this we have to understand what the concept of child custody is and what the Writ of Habeas Corpus is?.

Concept of Child Custody:

To understand the concept of child custody first we have to understand what we understand by the term child custody? Without going into the legal definition of child custody, in general, we get the physical custody of a child by either of parents but in the legal world, child custody is related to guardianship of child and if we go to the dictionary meaning of “Guardianship” as given in oxford English dictionary it defines it as “the state or position of being responsible for somebody/something  by looking into this we get to know that it’s not about having physical control of a body but it defined as a position in which someone is having the responsibility of a person or something, it is about taking the responsibility of growth of something or someone, in the context of child it is about taking the responsibility of emotional, physical and overall growth of child. While in the other side when we talk about the legal term of child custody it is about the legal custody or legal guardianship of child , which consists of legal custody which is about having right to take decision about the child and physical custody which is about right and duty of house, provide and care.

Also Read: Difference between Judicial Separation and Divorce

Now being a practicing lawyer in India I have gone through the Guardian and Wards Act, 1890 in the definition clause as provided in section 4 of the act which is relevant in the present topic are subsection 1, 2, and 3. Now going into these definitions you would not get the definition of child, if we go into these clauses we will find  section 4(1) of the act defines the term “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;

Section 4(2) of the act defines “guardian” means a person having the care of the person of a minor or of his property or of both his person and property; and section 4(3) of the act defines “ward” means a minor for whose person or property or both there is a guardian;

Now these three sections don’t define child so can we say that there is no child custody law in India, no it’s not true to understand who is child in India we have to study further in two important perspectives and find a balance so the first way to understand who is minor?, to know this in Indian Legal Framework we have to read the definition of major and minor according to section 3 of Indian Majority Act, 1875 (section which is being substituted by the   Act 33 of 1999, s. 4 (w. e. f. 16. 12. 1999) i.e. Age of majority of persons domiciled in India.-

(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.

(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.]

So the minors as per the section 4(1) of the Guardian and Wards act and Indian Majority act any person who has not attained the age of 18 is minor, and to understand who is child we have to go through the United Nations Convention On The Right of Child Right (UNCRC), UNCRC is the international agreement for child right, the UN Convention consists of 41 articles, each of which details a different type of right. These rights are not ranked in order of importance; instead they interact with one another to form one integrated set of right and India ratified the UNCRC in 1992 and thereafter the Juvenile Justice Act 2000 was brought in, so the Article 1 of UNCRC states For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

While reading all these definition we get to know that minors as defined in the Guardian and Ward Act are child as per article 1 of the UNCRC.

While reading all this we get to know all the minors are child and all the child are ward as per the law, when we speak about the child custody we have to go through the Guardian and Ward Act, further section 7 of the act provides the power upon the court to make order as to guardianship of ward, if we go through the subsection 1(a) of section 7 of the act we can find the guardian can be appointed for the ward or his property or both, subsection 1(b) declaring a person to be such a guardian the Court may make an order accordingly now subsection 2 of section 7 is very important for the context of child custody subsection 2 provides the power in the court to make  An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. Then section 25 of the act provides the Title of guardian to the custody of ward.—

(1) If award leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custo­dy of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882)1.

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

Also Read: How Police Interrogation Works

So the parents are generally the guardian of the child and due to matrimonial dispute one parent may leave with the child or leave the child with other person making the one of the person not having access to the child which ultimately in term emotionally not viable for the child as the child requires the love and affection of both, by this situation sometimes person who have no resource or not having enough sanity which is required for the welfare of child end up with the custody of child with whom the future of child is vulnerable  by removing the access of the child to other, so for the welfare of child it is required by the court to decide with whom the welfare of the child is best provided, so in general it is the person who is seeking the custody of child is required to move an application under section 25 of the act to seek the custody of child, but is it the only thing which is provided by the law for this purpose, we certainly not conclude this  here without studying the concept of writ of habeas corpus.

Concept of writ of Habeas Corpus

The concept of writ Habeas Corpus in Indian Legal Framework will find place in the constitution of India in article 32(2) and article 226(1), the article 32(2) provides  “Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part” and article 226(1) provides  “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose” but we cannot find the definition of habeas corpus in the constitution itself, actually the term habeas corpus which finds its genesis from Latin terminology, habeas corpus is Latin term which literally means to “you may have the body” so the writ of habeas corpus is generally being issued to issued to produce a person who has been detained , whether in prison or in private custody, before a court and to release him if such detention is found illegal. So from the bare perusal of the article 32(2) and 226(1), the Supreme Court of India and High Courts are having the power to issue the writ of Habeas corpus when warranted.

While looking into this the question arises how the writ of Habeas Corpus is used for the purpose of the child custody when the child is with one of the natural guardians and the alternative relief is available if anyone aggrieved? For this purpose, we have to understand that while we are dealing with child custody the point of consideration is the welfare of child and it plays a crucial role in the writ of habeas corpus. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that court can invoke its extraordinary writ jurisdiction for the best interest of child. This has been done in the Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors {(1987) 1 SCC 42}, Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr { (2017) 8 SCC 454} and in the Lahari Sakhamuri vs. Sobhan Kodali {(2019) 7 SCC 311}  among others. In all these cases the writ petitions were entertained by the courts.


By going through the concept of Child Custody and Concept of Habeas Corpus we can say that there is not a question at all regarding the maintainability of writ of habeas corpus for the purpose of Child Custody, the above given case laws have well settled that the writ of habeas corpus is maintainable for the custody of child. Now the crux of entire point is the only thing which is to been seen at any proceedings pertaining to child custody is the welfare of child, that is the paramount question involved in the child custody cases, insofar as the father or mother is able to prove that the welfare of child is in best interest of child under there custody they can approach the court to seek the writ of habeas corpus.