Constitution of India, 1950
Article 226—Writ—Habeas corpus—Writ of habeas corpus is a prerogative writ and an extraordinary remedy—It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.
[Para 22]
Article 226—Writ—Habeas corpus—Custody of minor child—Principal duty of the court in custody matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person—Principle is well settled that in such matters the welfare of the child is of paramount consideration.
[Para 23]
Article 226—Writ—Habeas corpus—Child custody matters—Habeas corpus proceedings may not be utilized to justify or examine the legality of the custody—Power of the Court in granting the writ is qualified only in cases where detention of a minor is by a person not entitled to his/her legal custody—For the exigence of a writ, it would be required to be proved that the detention of the minor child is illegal and without any authority of law, and that the welfare of the child requires that the present custody should be changed.
[Para 24]
Article 226—Writ—Habeas corpus—Child custody matters—In a case where facts are disputed and a detailed inquiry is required, the court may decline to exercise its extraordinary jurisdiction and may direct the parties to approach the appropriate legal forum.
[Para 25]
Article 226—Writ—Habeas corpus—Custody of minor child—Custody of the first petitioner, corpus (a minor of aged about seven years), is presently with his mother—Material facts do not, in any manner, suggest that it is a case of illegal detention, and in view thereof, the present petition seeking a writ of habeas corpus would not be entertainable.
[Para 27]