Detailed enquiry pertaining to welfare of minor child and his preference could be done only under Guardians and Wards Act, 1890 and not under Article 226 of Constitution: Supreme Court
Justices B.R. Gavai & Sandeep Mehta [03-05-2024]

Read Order: NIRMALA v. KULWANT SINGH & ORS [SC- CRIMINAL APPEAL NO. 2194 OF 2022]

Tulip Kanth 

New Delhi, May 6, 2024: The Supreme Court has asserted that the exercise for promoting the bond between a minor child and the father in a graded manner, and thereafter considering the grant of custody taking into consideration the paramount interest of the child's welfare, would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution. The Top Court noted that the father, however, can file an application under the provisions of the Guardians and Wards Act, 1890.

The factual background of this case was that the marriage which  took place between Dr. Kulwant Singh (respondent-father) and one Sangeeta was the second marriage for both of them.From the marriage, one child, namely Garvit (minor child) was born in  2015.

In 2019, the mother of the minor child was found dead the police submitted the Cancellation Report to the competent Court.The respondent-father had voluntarily handed over the minor child to the appellant- grandmother and had also appointed the appellant- grandmother as “Guardian” of the minor child and the “Caretaker” of a property that was gifted by the Aunt of respondent-father to the minor child. Since then, the custody of the minor child was with the appellant- grandmother. The respondent-father filed an application/complaint with the Child Welfare Committee (CWC) and sought the custody of the minor child on the ground that the appellant-grandmother took the minor child by cheating and fraud.The CWC directed the SHO to take the custody of the minor child from the appellant-grandmother and hand him over to the respondent-father.

The appellant’s Criminal Appeal was allowed. However, when the respondent-father filed a Petition seeking release of the minor child from the alleged illegal custody of the appellant-grandmother, the same was allowed.

The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta was considering an appeal filed against the final judgment of the Punjab and Haryana High Court. The High Court had allowed the petition filed under Article 226/227 of the Constitution of India, by the respondent No. 1 (respondent-father) and directed the appellant-maternal grandmother to hand over the custody of the minor child to respondent-father.

Referring to the judgment in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others [LQ/SC/2019/841], the Bench said, “It can thus be seen that this Court has held that the habeas corpus is a prerogative writ which is an extraordinary remedy…It has been held that 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. It has further been held that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”

Coming to the facts of the case, the Court found that the child being a minor, aged 1 1/2 years, cannot express its intelligent preferences and in the facts and circumstances of said case, the father being the natural guardian was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.

It was further explained by the Court that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case.

According to the case of the respondent-father himself, in the peculiar facts and circumstances of the case, a family environment was required for the child especially from the grandparents and that he had placed the custody of the minor child with the appellant- grandmother for taking his care. 

“It can thus clearly be seen that it is not a case that the appellant-grandmother had illegally kept the custody of the minor child. It is the respondent-father who had placed the custody of the minor child with the appellant- grandmother”, the Bench said while further adding, “In any case, we are of the view that compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances.”

The Top Court also stated, “In our view, an exercise for promoting the bond between the minor child and the respondent-father in a graded manner and thereafter considering the grant of custody of minor child to the respondent-father taking into consideration the paramount interest of the welfare of the minor child would be required to be done in the present matter. Such an exercise would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution of India.”

Thus, noting that the High Court was not justified in entertaining the petition under Article 226, the Bench dismissed the impugned judgment of the Punjab and Haryana High Court. Allowing the appeal, the Bench directed that in the event the respondent-father files an application under the provisions of the Guardians and Wards Act, 1890, the competent Court shall decide the same expeditiously. We further direct that in the event such an application is made, an order at least with regard to visitation rights would be passed within a period of 4 weeks from the making of such an application.