Punjab and Haryana High Court: Habeas Corpus not maintainable in custody disputes involving father

The Punjab and Haryana High Court has made it clear that a habeas corpus petition is not maintainable in child custody matters involving father. Justice Manisha Batra’s Bench also ruled that the custody of a child with the father could not be deemed illegal.

Justice Batra asserted a writ of habeas corpus in custody matters was maintainable only when the person detaining the child was not legally entitled to the custody. The court emphasised that the appropriate remedy for custody disputes was under the Guardianship and Wards Act and not through a habeas corpus petition, unless the child was in illegal or unauthorised custody.

Justice Batra also declined a habeas corpus petition filed by a mother seeking custody of her two children from their father. The court noted: “The question that arises before this court for consideration is as to whether the custody of the minor children with respondent-father can be stated as illegal, warranting issuance of a writ in the nature of habeas corpus directing their release from his custody. In the considered opinion of this court, the answer to this question should be in the negative.”

Justice Batra referred to Section 6 of the Hindu Minority and Guardianship Act, 1956, which stated that “the custody of a minor who has not completed the age of five years shall ordinarily be with the mother”. As the children in the case before the court were aged 10 and eight, the father’s custody could not be deemed illegal, the court ruled.