2024 INSC 664

Criminal Appeal No.3821 of 2023 Page 1 of 12

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3821 OF 2023

Somprabha Rana & Ors. … Appellants

versus

The State of Madhya Pradesh & Ors. ... Respondents

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. This appeal arises from a very unfortunate dispute about

the custody of a female child (for short, ‘the child’) whose

present age is two years and seven months. The mother of the

child unfortunately died an unnatural death on 27

th December

2022. It is alleged that the death of the mother was by hanging.

The 4

th respondent is the father of the child. The 2

nd and 3

rd

respondents are the paternal grandparents of the child. The

5

th respondent is the sister-in-law of the 4

th respondent (his

brother’s wife). The 1

st to 3

rd appellants are the real sisters of

the deceased mother. The 4

th and 5

th appellants are the child's

maternal grandparents, who were not the parties before the

High Court. The 5

th respondent is also a real sister of the child’s

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mother. The 5

th respondent is the wife of the 4

th respondent’s

brother.

2. The 2

nd to 4

th respondents invoked the jurisdiction of the

Madhya Pradesh High Court by filing a petition seeking a writ

of Habeas Corpus under Article 226 of the Constitution of

India. A case made out in the petition was that the 4

th

respondent and the mother of the child were residing in Indore,

where the unnatural death of the mother occurred. A First

Information Report was registered against the 2

nd and 4

th

respondents for offences punishable under Sections 304-B and

498-A of the Indian Penal Code and Sections 3 and 4 of the

Dowry Prohibition Act, 1961. According to the case of the 2

nd

to 5

th respondents, the 2

nd and 3

rd appellants came to Indore

on 28

th December 2022. When the 4

th respondent was busy

completing the formalities of the post-mortem, without the

consent of the 4

th respondent, the 2

nd and 3

rd appellants took

away the minor child. The 4

th respondent - the father, was

arrested in connection with the offence on 19

th February 2023

and was granted bail after filing the charge sheet on 19

th April

2023. The petition under Article 226 filed by the 2

nd to 5

th

respondents proceeded on the allegation that the 2nd and 3rd

appellants illegally took over custody of the child. It must be

noted here that on the date of death of the mother, the age of

the child was 11 months.

3. By the impugned judgment dated 23

rd June 2023, the

Division Bench of the High Court of Madhya Pradesh at Indore

allowed the writ petition. It issued a writ of Habeas corpus

Criminal Appeal No.3821 of 2023 Page 3 of 12

directing the appellants to hand over custody of the child to the

2

nd to 5

th respondents. On 7

th July 2023, this Court issued

notice and granted a stay of the operation of the impugned

judgment. On 5

th December 2023, this Court granted leave

and continued the stay. However, this Court observed that it

would be open for the husband to apply for custody before the

appropriate Court. As of this date, the husband has not

applied for custody by filing proceedings under the Guardians

and Wards Act, 1890 (for short, “the GW Act”). The appellants

made such an application under the GW Act, but it was

withdrawn later. This is the statement made by the learned

counsel for the appellants. Now, the question is whether the

High Court was justified in disturbing the custody of the child,

whose age was one year and five months at the time of passing

the impugned judgment.

SUBMISSIONS

4. The learned senior counsel appearing for the appellants

urged that by the impugned judgment, without making any

inquiry, the High Court has ordered the child's custody to be

disturbed based only on the legal rights of the child's father

and grandparents. He submitted that in the facts of the case,

the High Court ought not to have entertained a petition for

Habeas Corpus. He submitted that even if the petition was to

be entertained, it was the duty of the Court to see what was in

the best interests of the minor and custody could not have been

disturbed at such tender age without considering the question

of the welfare of the minor child.

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5. Learned senior counsel appearing for the respondents

extensively relied upon decisions of this Court in the cases of

Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari

& Ors.

1, Swaminathan Kunchu Acharya v. The State of

Gujarat

2 and Gautam Kumar Das v. NCT of Delhi &

Others

3. Learned senior counsel would urge that the case of

Gautam Kumar Das

3 is identical on facts where the High

Court had declined to entertain the petition for Habeas corpus

by expressing a view that statutory remedy should be adopted

for seeking custody. However, this Court interfered and

granted the father custody of the minor child. He submitted

that the father and his parents reside together and, therefore,

are in a position to take the best possible care of the child. He

submitted that the appellants have not allowed the father to

see even the face of the child. The learned senior counsel

appearing for the appellants relied upon a decision of this

Court in the case of Nirmala v. Kulwant Singh and Others

4.

CONSIDERATION OF SUBMISSIONS

6. After having perused various decisions of this Court, the

broad propositions of settled law on the point can be

summarised as follows:

a. Writ of Habeas corpus is a prerogative writ. It is an

extraordinary remedy. It is a discretionary remedy;

1

(2019) 7 SCC 45

2

(2022) 8 SCC 804

3

(2024) INSC 610

4

(2024) SCC OnLine SC 758

Criminal Appeal No.3821 of 2023 Page 5 of 12

b. The High Court always has the discretion not to exercise

the writ jurisdiction depending upon the facts of the case.

It all depends on the facts of individual cases;

c. Even if the High Court, in a petition of Habeas Corpus,

finds that custody of the child by the respondents was

illegal, in a given case, the High Court can decline to

exercise jurisdiction under Article 226 of the Constitution

of India if the High Court is of the view that at the stage

at which the Habeas Corpus was sought, it will not be in

the welfare and interests of the minor to disturb his/her

custody; and

d. As far as the decision regarding custody of the minor

children is concerned, the only paramount consideration

is the welfare of the minor. The parties' rights cannot be

allowed to override the child's welfare. This principle also

applies to a petition seeking Habeas Corpus concerning a

minor.

7. Now, we come to the impugned judgment. The reasons

given by the Division Bench are found only in two paragraphs,

namely, paragraphs nos. 10 and 11, which read thus:

“10. From perusal of the Tejaswini Gaud &

Ors.(supra), the Habeas Corpus proceeding

is not to justify or examine the legality of

the custody. In the present case, the only

thing which is required to be considered is

whether the detention of the minor child by

the parents or others was illegal and

without any authority of law. It is the

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settled proposition of law that the Writ of

Habeas Corpus is maintainable only if the

person is able to prove that the Corpus is

in illegal custody or is kept in illegal

confinement. In the present case,

admittedly the petitioners would have

precedence over the respondent Nos.3

and 4 who are the relatives from the

maternal side whereas the petitioner

No.3 is the biological father of the

Corpus, therefore, the writ of Habeas

Corpus is maintainable as well as the

petitioners would have precedence for

custody of the minor child qua the

respondent Nos.3 and 4.

11. The writ of the Habeas Corpus for

seeking custody of minor child is

maintainable only if the Corpus is in illegal

custody. In the present case, the

custody/detention of a minor child by

the respondent Nos.3 and 4 who are not

the natural guardian of the Corpus, are

not entitled to her legal custody.

Accordingly, the respondent Nos.3 and 4

are directed to hand over the custody of the

minor child namely XXXX to the petitioners

within 15 days from the date of receipt of

certified copy of the order.”

(emphasis added)

8. It is apparent that the High Court has not dealt with and

considered the issue of the welfare of the child. The High

Court has disturbed the child's custody based only on the

father's right as a natural guardian.

9. The High Court was dealing with the custody of the child,

whose age at that time was one year and five months. The

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child had been in the custody of the appellants from the tender

age of 11 months after her mother died. The child, at present,

has been in the custody of the appellants for more than one

and a half years. When the Court deals with the issue of

Habeas Corpus regarding a minor, the Court cannot treat the

child as a movable property and transfer custody without even

considering the impact of the disturbance of the custody on

the child. Such issues cannot be decided mechanically. The

Court has to act based on humanitarian considerations. After

all, the Court cannot ignore the doctrine of parens patriae.

Learned senior counsel appearing for the 2

nd to 5

th

respondents submitted that if the Court is of the view that

there is no proper consideration by the High Court, the order

of remand may be passed to the High Court.

10. We believe that considering the peculiar facts of the case

and the child's tender age, this is not a case where custody of

the child can be disturbed in a petition under Article 226 of

the Constitution of India. Only in substantive proceedings

under the GW Act can the appropriate Court decide the issue

of the child custody and guardianship. Regular Civil/Family

Court dealing with child custody cases is in an advantageous

position. The Court can frequently interact with the child.

Practically, all Family Courts have a child centre/play area. A

child can be brought to the play centre, where the judicial

officer can interact with the child. Access can be given to the

parties to meet the child at the same place. Moreover, the

Court dealing with custody matters can record evidence. The

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Court can appoint experts to make the psychological

assessment of the child. If an access is required to be given to

one of the parties to meet the child, the Civil Court or Family

Court is in a better position to monitor the same.

11. Coming to the facts of the case, at this stage, it will be

very difficult to decide whether the welfare of the minor child

requires custody of the maternal aunts to be disturbed. The

child has not seen the father and grandparents for over a year.

At the tender age of two years and seven months, if custody of

the child is immediately transferred to the father and

grandparents, the child will become miserable as the child has

not met them for a considerably long time. Moreover, even the

contesting respondents have not alleged that the child is not

being looked after properly by the appellants. Whether the

father is entitled to custody or not is a matter to be decided by

a competent court, but surely, even assuming that the father

is not entitled to custody, at this stage, he is entitled to have

access to meet the child. It is in the child's best interest that

she knows her father and grandparents and remains with them

for some time to begin with.

12. We repeatedly asked the learned senior counsel

representing the husband whether the husband was willing to

apply for custody. However, he has shown unwillingness to

apply for custody. The husband is a member of the Bar

practising at the Indore Bench of the Madhya Pradesh High

Court. Even he was personally present during the hearing.

However, the learned senior counsel appearing for the

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appellants stated that the appellants or any of them would

apply for claiming declaration as a guardian and retaining the

custody. The earlier application filed by the appellants has

been withdrawn. However, orders of the Court regarding

custody are never final. Therefore, we propose to permit the

appellants or any of them to apply for custody to the Regular

Court under the GW Act. Even in the petition filed by the

appellants, the competent Court can permit the father to take

over the custody if it is satisfied that the welfare of the minor

requires custody to be granted to the father.

13. We propose to direct the appellants to give access to the

father and paternal grandparents of the child to meet the child

once a fortnight. To begin with, access can be provided in the

office of the secretary of the District Legal Service Authority so

that the secretary can supervise the access. We propose to

direct the secretary of the District Legal Service Authority to

take assistance from a child psychologist or a psychiatrist

(preferably female) attached to a local public hospital. If no

such expert is available with the local public hospital, such an

expert can be appointed at the appellants' cost. The expert will

ensure that the child responds to the father and grandparents

and interacts with them. The order of access shall continue for

four months. After that, it will be open for the concerned Trial

Court to modify this order of access in all respects. When the

child becomes comfortable with his father and grandparents,

the Court can also consider granting overnight access to the

father and the grandparents.

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14. Hence, we pass the following order:

a. Impugned judgment and order dated 23

rd June,

2023 is set aside, and Writ Petition No. 11004 of 2023 is

hereby dismissed. We make it clear that the Writ Petition

is dismissed not on merits but on the ground that on

facts, the discretion could not have been exercised

under Article 226 of the Constitution of India to disturb

the custody of the appellants at this stage;

b. On every 1

st, 3

rd and 5

th Saturdays starting from

21

st September 2024, the appellants shall take the child

to the office of the secretary of the District Legal Service

Authority at district Panna in the State of Madhya

Pradesh at 03.00 p.m. Under the supervision of the

secretary of the District Legal Service Authority, the

father and grandparents of the child shall be permitted

to meet the child till 05.00 p.m.;

c. The secretary of the District Legal Service Authority

shall take the assistance of a child psychologist or a

psychiatrist (preferably female) working in any local

public hospital. If such experts are unavailable, the

secretary shall privately engage one such expert at the

appellants' cost. The appellants will pay necessary

charges as and when called upon by the secretary. The

payment will be subject to the outcome of the

proceedings for grant of custody;

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d. The expert so appointed shall remain present at the

time of access. The expert's duty will be to persuade the

child to interact with her father and grandparents. As

regards the mode and manner of allowing the father and

grandparents to meet the child, the parties and the

secretary of the District Legal Service Authority shall be

guided by the opinion of the expert;

e. As assured to the Court, the appellants or some of

them shall file a petition seeking a declaration of

guardianship and permanent custody of the child under

the provisions of the GW Act before the competent Court

within a maximum period of two months from today;

f. The concerned Court in which the application will

be filed shall pass further orders regarding the grant of

access and/or overnight custody to the husband and the

grandparents. Further interim directions regarding

access, overnight access, etc., shall be issued by the

competent Court in which the appellants apply for

custody. To enable the said court to pass an appropriate

interim order, we direct that the interim arrangement

made as above for the grant of access to the father and

the grandparents will continue to operate for four

months from today. Thereafter, the competent Court

will deal with the prayer for interim relief on its own

merits. Needless to add, in the event the husband

and/or grandparents apply for custody, the application

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filed by them and the application filed by the appellants

shall be heard together, and

g. In the event of failure of both parties to apply to the

competent Court, the parties will be free to apply to this

Court for appropriate directions.

15. The appeal is, accordingly, partly allowed on the above

terms.

16. We direct the registry to immediately forward a copy of

this judgment to the secretary of the District Legal Service

Authority at District Panna, State of Madhya Pradesh, who

shall act upon the copy of the judgment provided by the registry

of this Court. If the secretary of the District Legal Service

Authority needs any further directions from this Court, it will

be open for him to submit a report to the Registrar (Judicial) of

this Court, who shall immediately place the same before this

Bench and/or the appropriate Bench.

17. There will be no orders as to costs.

...…………………………….J.

(Abhay S Oka)

..…………………………….J.

(Augustine George Masih)

New Delhi;

September 6, 2024.