Constitution of India, 1950
Article 226—Writ of habeas corpus—Issue relating custody of child—Role of court—Matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most—Role of the Court becomes crucial in such cases—Court is required to exercise parent patriae jurisdiction and compel the parties to do something that is in the best interest of the child—Hence, in such a peculiar situation, it is the responsibility of the Court to enter into the role of a guardian for the child.
[Para 35]
Article 226—Writ of habeas corpus—Custody of child—Summary jurisdiction be exercised if the Court to which the child has been removed is moved promptly and quickly—Overriding consideration must be the interest and welfare of the child—That the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child—Expression "best interest of the child", which is always kept to be of paramount consideration, is indeed wide in its connotation, and it cannot remain only the love and care of the primary caregiver i.e. the mother in the case of the child who is only a few years old and the basis for any decision taken regarding the child, is to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development—However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration—Courts should decide the issue of custody only on the basis of what is in the best interest of the child.
[Para 36]