On Friday(6th September)The Supreme Court ruled that courts handling habeas corpus cases involving minors cannot treat them as “movable property” and must consider the impact of custody changes. Habeas corpus petitions aim to produce a missing or illegally detained person before the court.
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NEW DELHI: The Supreme Court of India has emphasized that courts handling habeas corpus petitions involving minors must not treat children as “movable property” and transfer their custody without considering the potential emotional and psychological impact on them.
A habeas corpus petition is typically filed to seek the court’s intervention in producing an individual who has gone missing or has been unlawfully detained. In cases involving minors, the stakes are higher, and the court must act in the best interest of the child, the Supreme Court said on Friday(6th September).
A bench comprising Justices A S Oka and A G Masih addressed this issue while hearing a case concerning the custody of a two-year-old girl. They stressed that the court must not mechanically decide such matters and should act on the basis of “humanitarian considerations.”
“When handling a habeas corpus case involving a minor, the court cannot treat the child as movable property or transfer custody without considering the impact that such a disruption would have on the child.”
-the bench ruled.
Case Background:
The case involved the custody of a girl aged two years and seven months. After her mother’s tragic and unnatural death in December 2022, the child had been living under the care of her maternal aunts. The father and paternal grandparents challenged this arrangement, and the matter eventually reached the Supreme Court.
In June 2023, the Madhya Pradesh High Court had ordered the maternal aunts to hand over custody of the child to her father and paternal grandparents. However, this decision was stayed by the Supreme Court in July 2023.
The Supreme Court bench was tasked with determining whether this stay should be lifted and whether the father and paternal grandparents should be granted custody.
The Supreme Court observed that the Madhya Pradesh High Court, while ruling in favor of the father’s custody rights, did not adequately consider the welfare of the child. It noted that the child had been in the custody of her maternal aunts since she was just 11 months old, following the mother’s death.
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“It is evident that the high court failed to address and consider the child’s welfare. The court disrupted the child’s custody solely on the basis of the father’s right as the natural guardian.”
-the bench remarked.
The top court emphasized that in cases concerning child custody, the “welfare of the minor” must be the “only paramount consideration” and that the rights of the parties should not override the best interests of the child.
The bench further clarified that the question of who should be granted custody of a child must be addressed in substantive proceedings under the Guardians and Wards (GW) Act, 1890, rather than through a habeas corpus petition. The GW Act provides a proper framework for determining guardianship and custody issues.
“We are of the view that, given the unique circumstances of the case and the child’s young age, this is not a situation where the child’s custody should be altered under a petition filed under Article 226 of the Constitution of India.”
– the court said, adding that only a regular civil or family court is equipped to handle such complex matters.
The Supreme Court underlined that, at this stage, it would be difficult to determine if the welfare of the child would be served by disrupting her current custody arrangement with her maternal aunts. The child had not seen her father and paternal grandparents for over a year, and an immediate transfer of custody could have serious emotional consequences.
“The child has not seen the father or grandparents for over a year. At the tender age of two years and seven months, an immediate transfer of custody to the father and grandparents would cause the child distress, as they have been separated for a significant period of time.”
-the court stated.
Rights of the Father and Paternal Grandparents
While the court deferred any decision on whether the father was entitled to permanent custody, it recognized the father’s right to establish a relationship with his child.
“Whether the father is entitled to custody or not is a matter to be decided by a competent court,”
-the bench explained,
adding that-
“Even if he is not entitled to custody at this stage, he still has the right to access and meet the minor.”
To facilitate this, the court directed that the father and paternal grandparents be allowed to meet the child once every fortnight under supervision.
“We propose to direct the appellants to allow the father and paternal grandparents to meet the child once a fortnight.”
-the bench declared.
The court laid out specific instructions for these supervised meetings. Beginning from September 21, the maternal aunts were ordered to bring the child to the District Legal Service Authority (DLSA) office in Panna, Madhya Pradesh, on the first, third, and fifth Saturdays of every month. The father and grandparents would be allowed to meet the child from 3 pm to 5 pm under the supervision of the DLSA secretary.
“As assured to the court, the appellants or some of them shall file a petition for a declaration of guardianship and permanent custody of the child under the provisions of the GW Act before the competent court within two months from today.”
– the bench added.