Constitution of India, 1950
Article 226—Writ—Habeas corpus—In an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.
[Para 12]
Article 226—Writ—Habeas corpus—Role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child—In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.
[Para 13]
Article 226—Writ—Habeas corpus—In a child custody matter, a writ of habeas corpus would be entertainable only where it is established that the detention of the minor child is illegal and without authority of law—In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum.
[Para 14]