Punjab and Haryana High Court: Custody claims should be examined by court of guardian

Saurabh Malik

Chandigarh, March 29

The Punjab and Haryana High Court has ruled that claims between a minor’s natural guardians should preferably be examined by the Court of Guardian and Wards. The ruling came as the HC dismissed a case, where a mother filed a habeas corpus petition as “an additional simultaneous remedy” against the father after accusing him of illegally and unlawfully removing the child from her custody.

Justice Vinod S Bhardwaj said: “I am of the opinion that custody of a father as a natural guardian cannot be held illegal or unlawful unless the same is in breach of some authority or order of law. Availability of an alternative efficacious remedy (under the Guardian and Wards Act) may not be a bar to the issuance of habeas corpus. However, competing claims between natural guardians should preferably be examined by the Court of Guardian and Wards, which is more equipped to determine the welfare of the child and offers complete opportunity to the contesting parties to establish their claims.”

Justice Bhardwaj observed the question for consideration was whether a writ of habeas corpus should be issued when the proceedings for a minor’s custody were pending between the parents before the Court of Guardian and Wards — a family court — and an order vesting the minor’s interim custody in the father’s favour had already been passed.

Justice Bhardwaj asserted the issue was not regarding the maintainability of a writ in the nature of habeas corpus “since the issue as to whether availability of an alternative efficacious remedy (under the Guardian and Wards Act) would prohibit the exercise of a writ jurisdiction well settled to the effect that it is not a bar”.

Justice Bhardwaj asserted the situation would be entirely different where the petitioner had already taken recourse to a statutory remedy (under the Act) and had also filed a writ of habeas as an additional simultaneous remedy, which happened to be the position in the instant case.

Referring to judgments on the issue, Justice Bhardwaj observed the law conferred a minor child’s custody with father. As such, it could not be held to be illegal or unlawful. It was evident that the child’s interim custody had also been vested with the father. As such, he could not be accused of keeping the child in violation of an order passed by a competent court or in violation of a procedure known to law.

Justice Bhardwaj concluded the availing of simultaneous remedy would itself be a reason for writ court to be slow in intervention as disputed questions of facts should preferably be resolved after affording the parties effective opportunity to lead their evidence.

‘Additional remedy’

The ruling came as the HC dismissed a case, where a mother filed a habeas corpus petition as “an additional simultaneous remedy” against the father after accusing him of illegally and unlawfully removing the child from her custody.