Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S. Oka and Justice Augustine George Masih held that while deciding the writ of habeas corpus in relation to the custody of the child the principle of welfare of child should be considered.         

• The Supreme Court held this in the case of Somprabha Rana v. The State of Madhya Pradesh. 

What is the Background of Somprabha Rana v. The State of Madhya Pradesh Case?

• The mother of the child in this case died an unnatural death by hanging on 27th December 2022. 
• Respondent no. 2,3 (maternal grandparents of the child) and 4 (father of the child) invoked the jurisdiction of the Madhya Pradesh High Court under Article 226 of the Constitution of India, 1950 (COI).  
• It was the case of the respondents that when the 4^th respondent (father of the child) was busy in completing the formalities of the postmortem of his wife, Appellant no. 2 and 3 (real sisters of deceased mother), took away the minor child (age of the child was 11 months on the date of the death of the mother). 
• It is to be noted that the 4^th Respondent was arrested for offences under Section 498A and Section 304B of Indian Penal Code, 1860 (IPC) and was granted bail on 19^th April 2023. 
• The writ of Habeas Corpus was allowed by the Division Bench of High Court and the Court directed the Appellants to hand over the custody to the Respondents. 
• The Supreme Court granted the stay of operation of the above judgment on 7^th July 2023. 
• On 5^th December 2023 the Supreme Court granted leave and continued the stay but the Court observed that it would be open for the husband to apply for the custody before the appropriate Court.  
• The Husband till date did not make any application for custody of the child. An application for custody was made by the Appellants but the same was withdrawn later.   
• The question before the Court now is: 
  • Whether the High Court was justified in disturbing the custody of the child whose age was one year and 5 months at the time of passing of the judgment?

What were the Court’s Observations? 

• The High Court disturbed the child's custody only because the respondent was the child's real father. 
• The High Court did not deal with the issue of welfare of the child. 
• The Supreme Court most importantly held that: 
  • When the Court deals with the issue of Habeas Corpus regarding a minor, the Court cannot treat the child as movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. 
• The doctrine of parens patriae should not be ignored by the Courts. 
• Given the tender years of the child and the fact that the child has not met the parents and grandparents for a considerably long time, the Court refused to transfer the custody immediately to the father and the grandparents. 
• The Court also held that the Regular Civil/Family Courts dealing with child custody matters are in an advantageous position.  
• However, the Court held that even if the custody of the child should not be granted to the father, he should be granted the right to have access to meet the child.

What is the Law on Custody of Child vis-a-vis Exercise of Jurisdiction under Article 226 of the COI? 

• The Court laid down the following principles to be followed in such cases: 
  • Writ of Habeas Corpus is a prerogative writ. It is an extraordinary remedy and is a discretionary remedy. 
  • It is at the discretion of the High Court to exercise or not exercise the powers in such cases. It all depends on the facts of individual cases. 
  • Even if in a particular case the High Court finds that the custody of the child is illegal it can decline to exercise the jurisdiction under Article 226 if the High Court is of the view that it will not be in the welfare /interests of the minor to disturb his/her custody. 
  • While deciding the question regarding the custody of the child, welfare of the minor should be of paramount consideration. 
  • The above principle also applies to a petition seeking Habeas Corpus concerning a minor.

What is the Principle of Best Interest of Child to be Considered in Cases of Custody of Child? 

• Section 17 of The Guardians and Wards Act, 1890 
  • Section 17 (1) provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 
  • Section 17 (2) provides that In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 
  • Section 17 (3) provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. 
• Section 13 of Hindu Minorities and Guardianship Act, 1956 
  • This Section provides that the in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 
• Ashish Ranjan v. Anupam Tandon (2010) 
  • While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being" 
  • The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem.   
• Col. Ramneesh Pal Singh v. Sugandhi Aggarwal (2024) 
  • The Court held that the matter of custody should be decided by taking into consideration the following factors:  
    • The socioeconomic and educational opportunities which may be made available to the Minor Children;  
    • Healthcare and overall well being of the children  
    • The ability to provide physical surroundings conducive to growing adolescents but also take into consideration the preference of the Minor Children. 

Why are Family Courts in a more Advantageous Position to Decide Child Custody?

• The Family Court can frequently interact with the child. 
• Practically, all Family Courts have a child centre/play area. 
• A child can be brought to the play centre, where the judicial officer can interact with the child. Access can be given to the parties to meet the child at the same place. 
• The Court can appoint experts to make the psychological assessment of the child. 
• If an access is required to be given to one of the parties to meet the child, the Civil Court or Family Court is in a better position to monitor the same.