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Father Cannot File Habeas Corpus To Get The Child’s Custody From Mother: Karnataka HC

  • 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.

Client And Court Not Bound By The Lawyer’s Admissions As To Matters Of Law Or Legal Conclusions: SC

  • The Hon’ble SC has once again reiterated in Employees State Insurance Corporation vs. Union of India that both the client and the Court are not bound by a lawyer’s admission as to matters of law or legal conclusions.
  • In the instant case, the respondents in the current matter had joined as Assistant Professors in the ESIC Model Hospital, Rajajinagar, Bengaluru between 2012 and 2014. A scheme was issued by the Central Government in 2008 which contemplated that an Assistant Professor who had completed two years of service would be eligible for being appointed as an Associate Professor.
  • Thus, the respondents applied to CAT, Bengaluru seeking the promotion but they were denied the same on the grounds that the ESIC regulations were not applicable to the same and the promotion is to be considered under DACP scheme. The respondents filed a writ petition before the HC challenging the order of CAT. The HC dismissed the same stating that ESIC Regulations 2015 came into force after the respondents were recruited and that they were not eligible for the same.
  • In the present appeal before the SC, the respondents contended that the appellants were estopped from urging that the DACP Scheme is not applicable to the teaching cadre at the ESIC since they have admitted the same before the CAT and in the writ petitions before the HC.
  • The Apex Court relied upon the judgement of the Division Bench of the Supreme Court in Himalayan Coop. Group Housing Society vs. Balwant Singh (2015)SCC where the Court clarified the law of agency as it applies to lawyer-client relationship. The Court stated that while admissions of fact generally made by a lawyer are binding, the Court or the client is not bound by the admissions as to matters of law. The Court, in this case, had also held that a lawyer generally had no implied authority to make an admission or statement which would result in the surrender of the rights of his client, unless of course, that was what he was hired to do.
  • The Court also observed that there can be no estoppel against a statute or a Regulation which has a statutory effect.
  • Thus, the Court concluded that the admission of the counsel for the appellant before CAT does not preclude the findings that will be arrived at by the Supreme Court.
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