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Wherein the physical custody of the child was with the grandparents, who are not the legal guardians of the child, the father of said child filed a habeaus corpus writ. The High Court, in accordance to that, was of the opinion that the child was being detained by people who are not his legal guardian and allowed for the writ of habeaus corpus.
The appellants i.e. the grandparents appealed to the Supreme Court against the High Courts decision contending that habeaus corpus is not for child custody cases and relief for those cases is present in the Hindu Minority and Guardianship Act and the Guardians and Wards Act.
The Supreme Court affirmed the decision of the High Court and contended that:
Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
The father had neither abandoned the child nor deprived him of his love and the circumstances were such that the child was being detained by the grandparents and thus, the writ of habeaus corpus was applicable. The writ of habeaus corpus was not for the custody of the child but for the illegal detention of the child by persons who were not his legal guardians.
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