Constitution of India, 1950
Articles 32 & 226—Writ—Custody of children—Direction to trace and produce minor children and to deliver their custody to the petitioner mother in compliance with the order passed by the US Court—Shared parenting plan was arrived at between parties—Second respondent with a view to solely removing the children from the USA and from the joint custody of the petitioner, left for India with the two minor children—Primary object of writ of habeas corpus, is to determine in whose custody the best interests of children will probably be advanced—Minor daughter has a remarkable high IQ—Both children were admitted in a special school meant for children with such remarkable high IQ in the USA—Special education definitely enhance the potential of children—Petitioner mother is a resident of USA, has acquired H1B Visa via sponsorship and has a good job at Ranstad, USA—Petitioner is earning handsome salary and has the resources to provide a comfortable life to her children—Custody of children allowed to the petitioner-mother—Direction issued.
[Paras 91, 97, 108, 109, 110, 111, 112 & 116]
Articles 32 & 226—Writ of habeas corpus—Claim for custody of Child—Consideration—In a petition seeking a writ of habeas corpus in a matter relating to a claim for custody of child, the principal issue which should be taken into consideration is as to whether from the facts of case, it can be stated that the custody of the child is illegal.
[Para 75]
Articles 32 & 226—Writ—Habeas corpus—Writ of habeas corpus has always been given due signification as an effective method to ensure release of the detained person from prison.
[Para 76]
Articles 32 & 226—Writ of habeas corpus—When an applicant becomes entitled to the writ as a right—Exercise of extra-ordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful—It is only where such jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
[Para 79]
Articles 32 & 226—Writ of habeas corpus—Custody of child—In the case of minors, the jurisdiction which the court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute—Employment of the writ of habeas corpus in child custody cases is not pursuant to, but independent of any statute.
[Para 91]
Shared Parenting—Meaning of—Shared parenting means the parents share the rights and responsibilities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children.
[Para 26]
Guardian and Wards Act, 1890
Section 1—Object of Act—Act was primarily enacted to consolidate the various Act then in force keeping in view the personal law of diverse communities in India—It however did not encroach upon the jurisdiction of the courts of wards and did not take away any powers vested in the High Courts or the Supreme Court.
[Para 71]
Hindu Minority and Guardianship Act, 1956
Section 1—Object of Act—Act was enacted as a law complementary to the Guardian and Wards Act—A mere reading of the provisions of the Guardian and Wards Act and the Hindu Minority and Guardianship Act makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the Court.
[Paras 72 & 73]
Decision : Petition allowed