Habeas corpus not substitute for custody proceedings: Punjab and Haryana High Court

The Punjab and Haryana High Court has made it clear that it can intervene in child custody disputes under its habeas corpus jurisdiction only in cases of clear illegality or exceptional circumstances. For ordinary custody claims, the remedy lies before statutory forums such as the guardianship courts under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.

The court, at the same time, added the prerequisite could be relaxed in exceptional cases where the welfare of the child so demanded, allowing the high court to adopt an inquisitorial role and even pass interim custody orders before referring the matter to the proper forum.

“Article 226 is couched in comprehensive phraseology and ex-facie it confers plenary power upon the high court to reach and undo injustice wherever it is found,” Justice Sumeet Goel observed, adding that the wide language used in the Constitution enabled the high court not only to issue prerogative writs but also to mould reliefs suited to the circumstances.

Justice Goel added the writ of habeas corpus – a “venerable cornerstone of the common law” – stood as one of the most ancient legal instruments devised to safeguard individual liberty against unwarranted encroachment. It was “the key that unlocks the door to freedom” and its role was to test the legality of a detention by summary procedure. The bench was assisted in the matter by advocates Siddharth Gupta and Chetan Goyal. The State was represented by Gurpartap Singh Bhullar.

Turning to the issue of child custody, Justice Goel asserted the inquiry was two-fold: “Firstly, whether the minor-child’s current custody is unlawful or illegal and secondly, whether the minor-child’s welfare necessitates a change in existing custodial arrangement, thereby entrusting the child to the care and custody of another.” The bench added that the detention of a child by a person not legally entitled to custody amounted to illegal detention for the purpose of habeas relief.

At the same time, Justice Goel cautioned that habeas corpus could not replace the detailed procedures prescribed under guardianship laws.

“The writ of habeas corpus is not a substitute for meticulous and evidence-based determination of custody dispute. It is not to be utilised as a subterfuge to circumvent the proper statutory forums and its exercise must be reserved for exceptional circumstances, where the pre-requisite jurisdictional fact is established for its invocation,” the court held.

Justice Goel reaffirmed that the paramount consideration in all custody matters was the child’s welfare. The court’s role in adjudicating minor-child custody cases was manifestation of its “parens patriae jurisdiction, akin to an ultimate guardian”.

Justice Goel added: “In all matters relating to the custody of minor child, the paramount consideration is the welfare of such child. In exercise of its parens patriae jurisdiction; the high court may, in appropriate cases, upon a holistic examination of facts, take an inquisitional role to ensure that the custodial arrangement serves the best interest of the child, superseding the adversarial claims of the parties.

It could also issue interim directions concerning custody and seek reports from family or civil courts. “The writ court may issue such interim orders concerning the custody and other incidental aspects as are warranted by the exigencies of the situation,” the bench recorded, while making it clear that such powers were to be exercised with restraint.