The Allahabad High Court, while dismissing a petition seeking issuance of habeas corpus for visitation rights for a one-month-old infant held that a writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child.
Brief Facts:
The petitioner, filed the present habeas corpus petition, seeking visiting rights pertaining to his one-month-old infant (petitioner no. 2), presently in the custody of his wife (respondent no. 4).
Contentions of the Applicant:
The learned counsel appearing on behalf of the petitioner submitted that respondent no. 4, who is the wife of petitioner no. 1, left her matrimonial home on 19.08.2018 along with petitioner no. 2 (corpus), an infant of age about one month at that point of time and while the proceedings under Sections 9 and 13 of the Hindu Marriage Act, 1951, maintenance proceedings under Section 125 of the Code of Criminal Procedure, 1973, and also a criminal case are stated to be pending between the parties, the only relief that he seeks to press in the present petition is for grant of visitation rights.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that since the relief sought in the present petition is confined to grant of visitation rights and proceedings relating to matrimonial disputes between the parties are pending before the Family Court, the present petition seeking a writ of habeas corpus would not be entertainable.
Observations of the court:
The court stated that the writ of habeas corpus is a prerogative writ, an extraordinary remedy, evolved under the common law and incorporated in our constitutional law, having the objective to protect and safeguard individual liberty and further stated that the principle with regard to a writ of habeas corpus being a writ of right and not a writ of course and that it may be granted only on the reasonable ground or probable cause being shown, has been reiterated in Mohammad Ikram Hussain v State of U.P. and others.
Further, the court stated that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful and it is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
The Court stated that proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child as this writ is in the nature of extraordinary remedy. The writ is issued where, in a particular case, the ordinary remedy provided under law is either unavailable or ineffective. Further, the Court the Court observed that petitioner no. 2 (the minor daughter) was an infant, approximately one month old, at the time her mother allegedly left the matrimonial home. Hence, the Court noted, according to Section 6(a) of the Hindu Minority and Guardianship Act (HMGA), prima facie, that the custody of a minor with their mother could not be deemed illegal.
The court further stated that a writ of habeas corpus, as has been consistently held, though a writ of right is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child and insofar as a claim regarding visitation rights is concerned, it is always open to the party concerned to avail the remedy by moving an appropriate application before the Family Court where proceedings concerning the matrimonial disputes between the parties are pending.
The decision of the Court:
The court dismissed the petition.
Case Title: Mithilesh Maurya and Anr. vs State of U.P and Ors.
Coram: Hon’ble Mr. Justice Yogendra Kumar Srivastava
Case No.: HABEAS CORPUS WRIT PETITION No. - 82 of 2024
Advocate for the Petitioner: Hemlata Srivastava
Advocate for the Respondent: G.A., Saurabh Kumar Pandey
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