Habeas corpus plea tenable for child’s custody: HC

A nine-year-old boy left by his mother with his maternal grandparents before going to Canada around four years ago will walk home with his father.

The Punjab and Haryana High Court has held that a habeas corpus petition filed by the father seeking the minor’s custody is maintainable. The ruling came on a petition related to the child’s custody, currently in the care of his maternal grandparents, while his parents were embroiled in multiple legal disputes.

One of the issues for adjudication before Justice Sandeep Moudgil’s Bench was whether a writ of habeas corpus could be issued when the child was separated from parents and deprived of essential emotional bonds, though not physically restrained.

Drawing on various precedents, Justice Moudgil asserted that habeas corpus – traditionally used to address unlawful detention – extended to cases where a child was unlawfully deprived of the love, care, and companionship of parents, particularly when such deprivation could cause long-lasting harm to the child’s mental and emotional health.

Referring to Section 6 of the Hindu Minority and Guardianship Act, Justice Moudgil asserted it identified the father as a minor child’s natural guardian.

The court observed that Section 6(a) provided that the mother was the child’s natural guardian till he attained the age of five.

But the child in the case before the court was nine years old. As such, he was under his father’s natural guardianship. He was deprived of the child’s custody since the mother went to Canada in 2020-21 and left the child in her parents’ care, though he was the natural guardian.

“One thing is crystal clear to the mind of this court that the minor is being deprived of love and affection of both parents as the mother never returned to India since the day she went abroad in 2020-21, whereas the father is contesting the custody along with visiting rights before the competent courts since 2021, meaning thereby the child is not in the company or to say technically custody of either of natural guardians and in fact it is the father as per law his natural guardian over and above mother,” the court observed.

Examining the legality of custody and guardianship status, Justice Moudgil observed neither the father nor the mother had appointed anyone as a guardian, nor had the court formally done so. Consequently, the maternal grandparents did not qualify as legal or testamentary guardians.