Legal if a parent takes child’s custody by force without violating law: Allahabad HC

The Allahabad High Court has dismissed as non-maintainable a habeas corpus petition moved by a woman seeking custody of her minor children from her estranged husband, observing that a father is a natural guardian of a Hindu minor and cannot be said to illegally detain a child even if he forcibly takes custody unless such an act is in violation of court order.

The petitioner’s mother had moved to court alleging that her estranged husband forcibly took away their two minor children at gunpoint in 2022 and had kept them under illegal detention since then.

Dismissing the petition, Justice Anil Kumar-X, relying on the Supreme Court’s judgment in Tejaswini Gaud and others vs Shekhar Jagdish Prasad Tewari and others, observed that habeas corpus in child custody matters can be invoked only when the custody of a child is illegal or without lawful authority.

On behalf of mother, Anjali Devi, it was submitted that several applications were filed before different forums seeking custody of the minors. However, no effective action had been taken by the authorities.

The petitioner’s counsel also relied upon the high court’s recent judgment in Rinku Ram alias Rinku Devi and another v. State of UP and seven others to argue that the court can invoke its extraordinary jurisdiction in the best interest of the child even in cases where a child is in the custody of another parent. The state counsel and the counsel for the respondent submitted that both minors have been residing with the father since 2022, and the petitioner-mother, before moving to the high court, had not availed of any remedy under the Guardian and Wards Act to date.

It was also argued that the custody disputes between parents ordinarily cannot be adjudicated in a writ petition under Article 226 of the Constitution.

It was also contended that the judgment in the Rinku Ram case was distinguishable on facts, as in that case the custody of the minor was forcibly taken in violation of an order passed by the Child Welfare Committee, which had directed that custody be handed over to the mother.

However, in the present case, no such circumstance existed.

The court, in its judgment passed on April 10, noted that an offence would be attracted only when the minor is removed from the custody of a person who is legally recognised as the guardian and the person taking the minor is not himself a lawful guardian.

The court also referred to section 4(2) of the Guardians and Wards Act to note that the law recognises the father as a natural guardian.

In view of this, the court held that a mere allegation that the father has forcibly taken the minors from the custody of the mother, even if accepted on its face value, would not lead to the conclusion that the minors are in illegal detention.

“The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract any criminality.

Such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition,” the court observed.

The court noted that, in the present case, the minors, who are over five years of age, have been residing with the father since 2022, and no extraordinary circumstance had been brought on record to indicate that their custody is illegal or detrimental so as to warrant interference by this court in the exercise of its writ jurisdiction.