The Supreme Court emphasized that courts dealing with habeas corpus petitions related to minors cannot treat children as “movable property” and transfer their custody without considering the emotional and psychological impact of disturbing their current custody. A habeas corpus petition seeks to produce a person before the court if they are missing or illegally detained.
A bench comprising Justices A S Oka and A G Masih declared that cases involving child custody should not be decided mechanically but based on humanitarian considerations, particularly the child’s welfare.
The court delivered its verdict in a case involving the custody of a girl child, aged two years and seven months, whose mother had died in December 2022. The child was under the care of her maternal aunts after her mother’s death, starting at 11 months old. Her father and paternal grandparents sought custody, which was initially granted by the Madhya Pradesh High Court in June 2023.
The Supreme Court, however, granted a stay on the high court’s decision in July 2023 and noted that the high court had not adequately considered the child’s welfare before deciding on custody, focusing instead on the father’s rights as the natural guardian.
The bench stressed that child custody decisions must prioritize the child’s welfare over the rights of the parties involved. The court also observed that determining custody in such cases should be handled through substantive proceedings under the Guardians and Wards (GW) Act, 1890, which offers a more comprehensive process than a petition under Article 226 of the Constitution of India.
The bench directed that the father and paternal grandparents be allowed to meet the child once a fortnight, under the supervision of the District Legal Service Authority (DLSA) at Panna, Madhya Pradesh. Meetings will take place starting from September 21, on the first, third, and fifth Saturdays of each month.
The Supreme Court also instructed the maternal aunts to file for guardianship and permanent custody of the child under the GW Act within two months.
