Constitution of India, 1950
Article 226—Writ of habeas corpus—Custody of child—Broad propositions of settled law on the point can be summarized as follows :
[Para 6]
Guardianship
Custody of female child—High Court issued a writ of habeas corpus directing the appellants to handover the custody of child to the second to fifth respondents—Appeal—Unnatural death of the mother of child occurred and an FIR was registered against second and fourth respondents for offences punishable under Section 304B & 498A of IPC and Sections 3 & 4 of the Dowry Prohibition Act—Appellants are real sisters of deceased mother—Question as to whether the High Court was justified in disturbing the custody of the child, whose age was one year and five months at the time of passing the impugned judgment—High Court has not dealt with and considered the issue of the welfare of child—High Court has disturbed the child’s custody based on the father’s right as a natural guardian—Child had been in the custody of appellants from the tender age of 11 months after her mother died—When the court deals with the issue of Habeas Corpus regarding a minor, the court cannot treat the child as a movable property and transfer custody without even considering the impact of disturbing of the custody on the child—Such issues cannot be decided mechanically—Court has to act based on humanitarian consideration—After all, the court cannot ignore the doctrine of parens patriae—Considering the peculiar facts of case and the child’s tender age, this is not a case where custody of child can be disturbed in a petition under Article 226 of the Constitution—Only in substantive proceedings under the Guardian and Wards Act can the appropriate court decide the issue of the child custody and guardianship. [Constitution of India, 1950, Article 226]
[Paras 8 to 10]