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While dealing with the question of child custody laws in India sometimes it comes on my path to choose between what way or law we choose to pursue the case, sometimes we go with the regular law that is Guardian and Ward Act or sometimes we go with the Article 226 of the Constitution of India for seeking the writ of habeas corpus. Here, the question arises about how we go with the writ of habeas corpus.Technically, is it possible to seek writ of habeas corpus while the child is with one of parents? And how it is illegal custody if child is with the mother or father?In this article, I am trying to conceptualize this question and trying to answer. While answering this we have to understand the concept of child custody and the Writ of Habeas Corpus.


Guardianship & Wards Act, 1890

To understand the concept of child custody first we have to understand what we understand by the term child custody. Without going into legal definition of child custody, in general terms, it is meant that we get the physical custody of a child by either parents but in legal world child custody is related to guardianship of child.If we go to the dictionary meaning of “Guardianship” as given in oxford English dictionary it define it as “the state or position of being responsible for somebody/something”. This means, it’s not about having a physical control of a body but it is defined as a position in which someone is having responsibility of a person or something.In the context of child it is about taking the responsibility of emotional, physical and overall growth of child. While on the other side when we talk about the legal definition of child custody, it is about the legal custody or legal guardianship of child. Legal custody is about having the right to take decision about the child whereas physical custody is about rights and duties of house, provide and care.

I have gone through the Guardian and Wards Act, 1890and in the definition clause as provided in Section 4 of the act which is relevant in the present topic are sub section 1, 2 and 3. Now going into these definition you would not get the definition of child.Section 4(1) of the act defines the term “minor”as a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority.Section 4(2)defines “guardian” as a person having the care of the person of a minor or of his property or of both his person and property. And Section 4(3) defines “ward” as a minor for whose person or property or both there is a guardian.

These three sections doesn’t define child.So, can we say that there is no child custody law in India? No, it cannot be deduced in this way. To define ‘child’ in India we have to study important prospective and find a balance. In Indian Legal Framework we have to read the definition of major and minor according to Section 3 of Indian Majority Act, 1875. It provides for age of majority of persons domiciled in India-

  1. Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.
  2. In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.

So the minors as per the Section 4(1) of the Guardian and Wards act and Section 3 of Indian Majority act, any person who has not attained the age of 18 is minor, and to understand who is child we have to go through the United Nations Convention On The Right of Child Right(UNCRC). It is the international agreement for child right, consisting 41 articles, each of which details a different type of right. These rights are not ranked in order of importance, instead they interact with one another to form one integrated set of right. India ratified the UNCRC in 1992 and thereafter the Juvenile Justice Act 2000 was brought in.

Article 1 ofUNCRC states, a child means every human beingbelow the age of eighteen years unless under the law applicable to the child, majority is attained earlier. While reading all this we get to know all the minors are child and all the child are ward as per the law, when we speak about the child custody we have to go through theGuardian and Ward Act, as Section 7 of the act provides the power upon the court to make order as to guardianship of ward. If we go through the sub-section 1(a) of Section 7, we can find the guardian can be appointed for the ward or his property or both.Sub-section 2 of section 7 is very important for the context of child custody asit provides as itempowers the court to make an order to imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Section 25 of the act provides the Title of guardian to custody of ward. It states-

  1. If a ward leaves or is removed from the custody of a guardian of his person, the Court, if opines that it will be for the welfare of the ward, may order for his return and for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian.
  2. For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882.
  3. The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

So the parents are generally the guardian of the child and due to matrimonial dispute one parent may leave with the child or leave the child with other person, making them not having access to the child. This ultimately in emotionalterms, not viable for the child as the child requires the love and affection of both.By this situation, sometimes, persons havingno resource or enough sanity, required for the welfare of child, end up with the custody of child, with whom the future of child is vulnerable.

For the welfare of the child it is required by the court to decide, with whom the welfare of the child is best provided.The person seeking the custody of child is required to move an application under Section 25 of the act to seek the custody of child, but is it the only thing which is provided by the law for this purpose?We certainly not conclude this here without studying the concept of writ of habeas corpus.

Concept of writ of Habeas Corpus

The concept of writ Habeas Corpus in Indian Legal Framework will find place in the Constitution of India in Article 32(2) and Article 226(1). Article32(2) provides, “Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. Article 226(1) provides, “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”.

However, there’s no definition for Habeas Corpus in the constitution itself.Actually, the term habeas corpus finds its genesis from Latin terminology, which means “you may have the body”.So, the writ of habeas corpus is generally being issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal.From the bare perusal of the Article 32(2) and Article 226(1), Supreme Court of India and High Courts are having the power to issue the writ of Habeas corpus when warranted.

While looking into this the question arises how the writ of Habeas Corpus is used for the purpose of the child custody when the child is with one of the natural guardian and the alternative relief is available if anyone aggrieved? For this purpose we have to understand that while we are dealing with the child custody the point of consideration is the welfare of child and it plays a crucial role in the writ of habeas corpus. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent.

The law in this regard has developed a lot over a period of time but now it is a settled position that court can invoke its extraordinary writ jurisdiction for the best interest of child. This has been done in the Elizabeth Dinshaw vs. Arvand M. Dinshaw& Others[1], NithyaAnandRaghavan vs. State (NCT of Delhi) &another[2] and in the LahariSakhamuri vs. SobhanKodali[3], among others. In all these cases the writ petitions were entertained by the courts.


By going through the concept of Child Custody and Concept of Habeas Corpus we can say that there is not a question at all regarding the maintainability of writ of habeas corpus for the purpose of Child Custody, the above given case laws has well settled that the writ of habeas corpus ismaintainable for the custody of child. Now the crux of entire point is that, the only thing which is to been seen at any proceedings pertaining to child custody is the welfare of child, that is the paramount question involved in the child custody cases, insofar as the father or mother is able to prove that the welfare of child is in best interest of child under there custody they can approach the court to seek the writ of habeas corpus.

Authored by-
Managing Director, Lexacquilam, Practicing lawyer at Allahabad High Court

  • [1](1987) 1 SCC 42.
  • [2](2017) 8 SCC 454.
  • [3](2019) 7 SCC 311.

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