Primary Object of Habeas Corpus Petition For Child's Custody Is To Determine In Whose Custody The Best Interest of the Child Will Be Advanced: Supreme Court

The Supreme Court, on Thursday, held that in petition seeking writ of habeas corpus in matter relating to custody of child, the Court exercises an inherent jurisdiction, independent of any statute and therein the paramount consideration of the Court is to ascertain what is in the best interest of the child. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced." A Bench comprising Justices A.M. Khanwilkar and J.B. Pardiwala allowed, but issued certain directions in a plea filed by a mother seeking the Apex Court to issue writ in the nature of habeas corpus and to issue directions to the State authorities to trace her two minor children and deliver their custody to her, so that they can be repatriated to the United States of America in compliance of order dated 30.07.2021 passed by a Court in Ohio, USA. 402 of 2021 | 14 July 2022 Corum: Justices A.M. Khanwilkar and J.B. Pardiwala Headnotes Constitution of India - Writ of Habeas Corpus in Cases of Child's Custody - in a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of a child, the principal issue which should be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal - 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 - whenever a question arises before a court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child - welfare is an all-encompassing word - It includes material welfare - while material considerations have their place they are secondary matters - more important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents - the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute - the jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity - The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced.