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  • In the case of Gaurav Raj Jain vs. State of Karnataka, the Karnataka HC has, by its order dated 4th January, 2022, held that a father cannot file a writ petition to secure the custody of his minor child. The Court has imposed a fine of Rs.50,000 on the petitioner.
  • In the instant case, the couple got married in 2009.a child was born to them prematurely and as a consequence, had to undergo treatments in various hospitals.
  • The wife (respondent) took the child away in October, 2021 and does not let the father meet the baby even after his repeated, desperate requests. Aggrieved, the petitioner was compelled to file the present writ petition.
  • The counsel for the petitioners argued that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 stipulate that the welfare of the child is to be of paramount consideration. The mere statement of the wife that the child is in safe custody is no proof of the same. The Act also stipulates that the basic needs of the child, be it emotional, social or physical, should be met for his overall development.
  • The counsel for the petitioner also relied upon the judgement of the Hon’ble SC in Tejaswini Gaud and ors. Vs. Shekhar Jagdish Prasad Tewari and ors. wherein it was held that the writ of habeas corpus is maintainable in a situation if it is proved that the detention of a minor child by the parent or any other person is illegal and is not backed by law. The same is treated as an illegal detention for the purpose of granting a writ of habeas corpus.
  • The petitioner also relied upon the judgement of the Rajasthan HC in Goverdhan Lal vs. Gajendra Kumar (AIR 2002) Raj. where it was held that the father of a minor son being the natural guardian has a preferential right over his custody.
  • The counsel for the respondents, on the other hand, contended that the child is residing with her biological mother and the present writ of habeas corpus is not maintainable. He also contended that the petitioner is misusing the right enshrined in Article 226 of the Constitution.
  • The Court held that the child was in safe custody of her mother and if the father was worried about her well-being, he could have taken recourse to the provisions of the Guardians and Wards Act, which he didn't. He could have also sought for the custody of the child by filing a petition in the family court. It was thus observed that the petitioner was indeed misusing the provisions of Article 226 of the Constitution.
  • The Court also observed that the petitioner has not brought anything on record to suggest that the custody of the child with her mother was illegal. Nothing had been shown to suggest that the custody was in violation of any Court order, and in such absence, it cannot be held that the custody of the child with her biological mother is unlawful.
  • Taking a very serious note of the fact that there has been a steep rise in the filing of such frivolous petitions, the Court imposed a cost of Rs.50,000 on the petitioner and dismissed the petition.
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