Nirmala vs Kulwant Singh 2024 INSC 370 – Habeas Corpus – Child Custody Matters

Constitution of India, 1950; Article 226- Maintainability of the Habeas Corpus petition with regard to custody of the minor child – Habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been held that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. It has further been held that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law- In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. -There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature- where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court- When a detailed enquiry including the welfare of the minor child and his preference is involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890. (Para 13-19)

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