Gujarat HC: Child Custody With Either Parent Is Not Illegal Unless Evidence Proves Otherwise
Summarized by AI; it may make mistakes. Check important info
Summarized by AI; it may make mistakes. Check important info
The Gujarat High Court has observed that the custody of a child with either of the natural guardians — the mother or father — cannot be treated as illegal or unauthorised unless cogent and substantial evidence establishes otherwise.
The division bench made the observation while hearing a habeas corpus petition filed by a woman who alleged that her husband had prevented her from meeting their two minor children following marital discord.
HC Explains When Habeas Corpus Is Maintainable
The bench observed that a writ of habeas corpus in a child custody matter is maintainable when the custody of a minor with a parent or another person is found to be illegal and without authority of law.
“Admittedly, the custody of the children with either of the natural guardian (mother and father) cannot be said to be illegal and without any authority of law unless otherwise it is proved by leading cogent and substantial evidence,” the court observed.
The court also said that habeas corpus should not be used as a remedy when an ordinary legal remedy is available and effective.
Mother Alleges Husband Prevented Her From Meeting Children
The couple married on November 7, 2011, in Ahmedabad according to Muslim rites and customs. They have two children — daughter Aahana Khan, aged around four years and nine months, and son Aahan Khan, aged around two years and six months.
According to the woman's petition, marital discord and frequent quarrels compelled her to leave the matrimonial home and move to her parental home.
She alleged that she could not take the children with her and that, despite repeated attempts to contact them, her husband prevented her from meeting them for various reasons. She subsequently approached the Gujarat High Court seeking relief through a habeas corpus petition.
Court Leaves Parties Free To Approach Appropriate Forum
The High Court noted that neither party had claimed that an ordinary legal remedy was unavailable. It, therefore, disposed of the petition, observing that recourse to habeas corpus should not be permitted when an available remedy under ordinary law can address the dispute.
The bench clarified that if either party approaches the appropriate forum, the matter must be decided in accordance with the law, based on the pleadings and merits of the case.
The court made it clear that it had not examined the merits of the child custody dispute while disposing of the petition.
