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Updated: Apr 23, 2021

 Mehak Kaushik

Hon'ble Dr. Yogendra Kumar Srivastava, J. of the Allahabad HC dismissing the writ petition stated that “the writ of Habeas Corpus concerning the change or decline of the minor child’s custody requires the examination of whether the custody is lawful or unlawful.”

In the present case, a writ of habeas corpus was filed on behalf of two minor children aged 11 and 5 years respectively by Ramesh Chandra Kanaujiya (Petitioner) who asserted him to be their father and natural guardian. He contended that the two minor children, who are living with their mother (Respondent), are under her illegal custody, and him being the father, has claimed their custody. The respondent was living independently and separately from her husband by her own free will and was taking care of her two minor children.

The court stated that “while seeking a writ of habeas corpus for custody of minor children, the utmost consideration for the court is to ascertain whether the custody of the children can be said to be unlawful and illegal and does their welfare questions their present custody to be changed and they being handed over to the care and custody of any other person.”

In the present case, it was undisputed that two minor children were under the care and custody of their biological mother. It may be presumed that the custody of the children with their mother is not unlawful as there is no incident indicating that the children were forcibly taken away by the mother from the custody of their father.

Depending upon the facts and circumstances of each case, there can be an exceptional situation in which the custody of a minor may be taken away from their mother and given to any other person including the father of the child while exercising their writ jurisdiction.

Thus, in view of the aforementioned facts, the Court was not inclined to entertain the writ petition seeking a writ of habeas corpus, in the facts and circumstances of the case and therefore dismissed the petition accordingly.

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