The High Court of Kerala at Ernakulam while dismissing the petition said that the object underlying a writ of habeas corpus is to secure the release of a person who is illegally deprived of his liberty. However, while dealing with the writ of habeas corpus relating to the custody of children, the paramount consideration should be the welfare of the children.
The Division Bench of Justice Anil K Narendran and Justice G Girish passed this order while hearing a petition filed by Dr Athulya Asok.
The petitioner in the petition under Article 226 of the Constitution of India, seeking a writ of habeas corpus, is the mother of the detenu, a boy aged 13 years. She had remarried after the dissolution of her marriage with the father of the detenu. In the wedlock of the petitioner with her present husband, she gave birth to a baby girl on 07.12.2023. The father of the detenu (petitioner’s previous husband), who was employed in Dubai, had passed away on 27.10.2023 at Thrissur. The detenu was under the care and protection of his father till the death of his father. Earlier, the detenu remained in Dubai along with his father, and he was undergoing his studies in a school at Sharjah. The detenu and his father came to their home village at Thrissur in the year 2023 once it was known that the detenu’s father was afflicted with incurable cancer. Till the death of the petitioner’s former husband (detenu’s father) on 27.10.2023, the detenu continued his studies in a school at Thrissur.
However, after the demise of his father, the detenu was shifted to Dubai and taken care of by respondents 6 to 8, who are the brother-in-law, sister and sister’s daughter respectively of the detenu’s father.
Alleging that the detenu was taken abroad in violation of the injunction order of the Family Court, Palakkad, and that the detenu was being kept under the illegal custody of respondents 5 to 8, the petitioner has moved the petition, seeking a writ of habeas corpus, directing the production of the detenu before the Court.
In accordance with the direction of this Court, respondents 6 and 7 produced the detenu before another Division Bench of the Court on 15.03.2024. After interaction with the detenu and the petitioner, the parties were referred to the Family Counselling Centre attached to the Court, since the child was reluctant to go with the petitioner, his mother.
On 21.03.2024, we interacted with the detenu and his mother individually and collectively at Chambers. We also perused the report of the consultant Psychologist of the Family Counselling Centre here.
The Court said that the object underlying a writ of habeas corpus is to secure the release of a person who is illegally deprived of his liberty. It is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the Court, the circumstances in which the person concerned has been detained can be enquired into by the Court, and upon due enquiry into the alleged unlawful restraint, pass appropriate direction as may be deemed just and proper. The Court in such proceedings conducts an enquiry for immediate determination of the right of the person’s freedom, and his release when the detention is found to be unlawful.
The Court observed that,
A perusal of the above order of the Family Court, Palakkad would reveal that it has been passed in the interim application filed in an Original Petition instituted by the maternal grandmother of the detenu against his paternal grandmother, who is the 5th respondent in the petition. The Respondents are apparently not parties to the above proceedings of the Family Court, Palakkad in which an interim injunction was issued. Therefore, the respondents, who are taking care of the detenu and looking after his affairs, cannot be said to be keeping him under unlawful custody. There is absolutely nothing on record to show that the petitioner’s son was taken abroad by the respondents in violation of any court order preventing them from doing so. Nor could the petitioner establish that the act of respondents keeping the custody of the detenu with them, and taking care of his affairs including education and grooming up, is in violation of any law applicable to the parties.
It is not possible to blame the petitioner for opting for a second marriage immediately after the dissolution of her marriage with the father of the detenu on the basis of any concepts of morality or lack of concern to the well-being of the progeny born in her earlier marriage and the emotional feelings of that child. However, while dealing with the writ of habeas corpus relating to the custody of children, the paramount consideration should be the welfare of the children.
As already discussed the legal rights of the parties concerned as per their personal law to have custody of the child, is not having much significance while this Court is dealing with the question as to the order of custody to be passed in a writ petition seeking writ of habeas corpus. If it is found that, in a given case, if an order directing the custody of a child with a parent is likely to be detrimental to the interest of that child, especially when the child is of advanced age, and having considerable maturity in mind to decide his future course of action, it is not possible for this Court to pass an order compelling that child to live with such parent who is totally unacceptable to him.
“As far as the case is concerned, we understand from the interaction with the detenu separately and jointly with the petitioner, that he is likely to suffer emotional trauma leading to disruption of his studies and peace of mind if he is compelled to live with the petitioner. The respondents with whom the detenu is presently living comfortably and peacefully and pursuing his studies in a good manner, shall continue to take care of him unless there is an order from a competent court exercising jurisdiction on minority and guardianship matters, to hand over the custody of that child to the petitioner.
In that view of the matter, the request of the petitioner to have custody of the detenu cannot be entertained in the petition for a writ of habeas corpus”, the Court further observed while dismissing the petition.