Indore (Madhya Pradesh): Indore bench of Madhya Pradesh High Court has clarified that the extraordinary remedy of a writ of Habeas Corpus in child custody disputes can only be invoked in exceptional circumstances, where the detention of a child by a parent or any other person is demonstrably unlawful. It cannot, however, be used solely to enforce directions passed by a foreign court.
The ruling came in a case where a father sought repatriation of his minor daughter to Canada, alleging that his wife had wrongfully removed the child from his custody in defiance of orders issued by a Canadian family court.
He argued that the child’s entire upbringing had been in North America and that she should be returned to that environment.
A division bench comprising Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi observed: "A writ of Habeas Corpus cannot be used only for mere enforcement of the direction given by a foreign court… The extraordinary power of the writ can be availed in exceptional cases where the detention of a child by a parent or others is illegal and without authority of law, and where the original remedy provided by the law is either unavailable or ineffective."
While the mother challenged the maintainability of the petition, relying on Vishnu Gupta vs State of MP precedent where a similar Habeas Corpus plea by a US-based father was dismissed the bench distinguished the present case. It noted that the earlier ruling had assessed the scope of Article 226 writ jurisdiction but did not preclude maintainability in custody matters altogether.
Rejecting the wife’s objection, the court reaffirmed that habeas corpus petitions concerning child custody are maintainable in light of Supreme Court jurisprudence. It emphasised, however, that the central guiding principle must be the child’s welfare.
"The Court, while passing the writ of Habeas Corpus, will examine whether the welfare of the child requires that the present custody should be changed and the child placed with somebody else," the bench added.
Stressing that the welfare of the child is the “paramount consideration”, the High Court posted the matter for further hearing on October 10.
