A writ petition seeking the remedy of a writ in the nature of habeas corpus is a extraordinary remedy under Article 226 of the Constitution of India. It is said that the power of the Court to issue this writ is a precious and undeniable feature of the rule of law.
- What is a Writ of Habeas Corpus?
A writ of habeas corpus is an order directing the person who has detained another to produce the detainee before the court in order for the court to ascertain on what ground or for what reason he has been confined, and to release him if there is no legal justification for the detention.
A writ of habeas corpus is granted ex debito justiae, i.e. as a matter of right, and the applicant must only demonstrate prima-facie, unlawful detention of himself or any other person.
- Whether a Habeas Corpus petition is maintainable against a private person?
In Mohd. Ikram Hussain vs. State of Uttar Pradesh, A.I.R. 1964 SC 1625 at 1630, it was held that the writ of habeas corpus shall be maintainable not only when the person has been detained by the State but also if detained by a private individual. However, it must be stated that Writ remedy is not a private law remedy, except writ of habeas corpus.
In Union of India vs. Paul Manickam, (2003) 8 SCC 342, it was held that if there is no justification for the detention and the same is unlawful, a writ is issued as of right.
The importance of a writ of habeas corpus is the duty being cast on a Constitutional Court to issue the writ to safeguard the freedom of a citizen against illegal and arbitrary detention.
Moreover, in order to invoke jurisdiction of the Hon’ble Apex Court under Article 32 of the Constitution by approaching the Court directly, it has to be shown by the Petitioner as to why the concerned High Court has not been approached.
- Speedy remedy and therefore, urgency is required to be shown
The writ of habeas corpus under Article 226 as well as Article 32 of the Constitution, is festium remidium, i.e., a speedy remedy, and such remedy needs to be made available even as against a private individual. Since, it is a summary proceeding, urgency is demonstrated by evidence and affidavits, and furthermore, illegality must also be demonstrated. It must be shown as to why an alternative remedy was not pursued.
Since in such cases, resorting to the process of instituting a criminal case before a police station, may prove to be futile, hence, the need of the hour in such cases is swift action, and therefore, interference of the High Court or the Supreme Court can be called for.
- What is the position of Habeas Corpus vis-à-vis other Laws for Guardianship and Custody?
In the case of Tejaswini Gaud and ors. V. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCR 335, the question arose before the Hon’ble Apex Court whether handing over of the custody of the child to respondent No.1-father is not conducive to the interest and welfare of the minor child. The Hon’ble Apex Court interpreted the relevant provisions of Hindu Minority and Guardianship Act 1956 as follows:
“10. Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts as to who can be said to be a natural guardian. As per Section 6 of the Act, natural guardian of a Hindu Minor in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property) is the father, in the case of a boy or an unmarried girl and after him, the mother. Father continues to be a natural guardian, unless he has ceased to be a Hindu or renounced the world. Section 13 of the Act deals with the welfare of a minor. Section 13 stipulates that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Section 13(2) stipulates that no person shall be entitled to the guardianship by virtue of the provisions of the Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
The Hon’ble Apex Court further went on to hold that:
“Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. 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. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, 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.”
Finally, the Hon’ble Apex Court held that though the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be, what is important is the welfare of the child, and therefore, the Court may interfere by granting a writ of habeas corpus, however, this is only in exceptional cases, and where a detailed inquiry is required, the Court may decline to exercise the extraordinary writ jurisdiction and direct the parties to approach the civil court.
Under Mahomedan Law, the mother is entitled to the custody of hizanat of a boy until 7 years and for a girl until the age of puberty, and if the mother is not available, it must be other female relatives.
Moreover, application for appointment of guardian under Mahomedan Law are to be made under Guardian and Wards Act 1890.
- Factors considered by the Court in entertaining a habeas corpus in child custody matters
It must be kept in mind that the problem of child custody is a humane problem and is required to be solved with human touch.
- Illegal Detention, if patently illegal without a detailed inquiry
- Welfare of the Child, which is of paramount importance
- Rights of the parties flowing from statutes
- Stability and consistency in the affairs and routines of children, eg. Impediments in schooling etc.
- Whether it will cause emotional strain on the child
- Child’s age
- Child’s ordinary comfort and contentment
- Moral and ethical values
- Preference of the child or wish/desire of the child, if the minor is old enough to form an intelligent judgment on his own
- Whether the child was abandoned (this would be a negative factor)
This list is non-exhaustive, and therefore, other factors can also play an important role as per the facts and circumstances of the case.
- What kind of prayers are allowed in Habeas Corpus Petition?
In case of Habeas Corpus Petitions, the principal duty of the Court in child related matters eg. Custody, visitation rights, etc. 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.
Prayers, hence, must be made accordingly. Any other prayer, say “grant of visitation rights”, has very less probability of being allowed specially when there are other avenues open for pressing such reliefs. It must be recalled that this remedy is extraordinary in nature and must be used in exceptional circumstances. Hence, for a relief this exceptional, a well-drafted writ petition presenting the entirety of facts and circumstances, and pressing upon the right arguments is essential.