Writ In Nature Of Habeas Corpus Maintainable In Matters Of Child Custody: Madhya Pradesh - Synopsis
Nilanjana Ganguly 10 Jun 2020

Recently, the High Court of Madhya Pradesh granted a writ petition of Habeas Corpus which was in effect the custody of 2 year old boy holding U.S. Citizenship. Relying on a principle of family law that is “welfare of the child is of paramount importance” the bench of Madhya Pradesh High Court examined the issue that  whether the petition of Habeas Corpus is maintainable in respect of custody of a minor child. The Court held that the writ petition of Habeas Corpus is surely maintainable and also keeping in the other important factors of child the court was of the opinion that the minor child should remain with his mother. A brief background of the case is that a writ petition was filed by a mother of a two year old boy who is a citizen of United States

The husband of the Complainant had received an order from the American Court for an ex-party restriction against her, forcing her to step out of the house and return to the home of her parents in Indore, India. The petitioner’s husband had kept their son at his parents house that is the house of the child’s grandparents and then executed a Power of Attorney on behalf of the petitioner’s husband’s parents to look after the child. Thus for these reason the petitioner that is the mother of the child had moved to the High Court filing a writ of Habeas Corpus for the custody of the child. The arguments which was given by the respondent is that the writ of Habeas corpus is not maintainable regarding a child’s custody, but the Court was of the opinion that the mother though an Indian citizen has a legal right to file a writ petition of Habeas corpus. The court also observed that according to Hindu Minority and Guardianship Act, 1890 the child must be given the custody of the mother. The respondent argued that according to the decision of the American Court the petitioner should not be allowed the custody of the child, but the High Court of Madhya Pradesh had rejected this argument and held that the ex-parte order from the American Court does not stop the mother from meeting his child or to keep the child with her and also the order of the American court did not imply that the custody of the child will be taken by the father.  

The Power of Attorney and the Authorization which was made by the father of the child in the favour of the child’s custody with parents of the father was an ‘unheard concept’ according to the Indian Courts. And thus the Court allowed the writ petition of Habeas Corpus which was filed by the mother of the child and also the order of the Court should be communicated to the U.S. Embassy and the Union Ministry of External Affairs.


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