SOMPRABHA RANA & ORS.versusTHE STATE OF MADHYA PRADESH & ORS.

                  [2024] 9 S.C.R. 64 : 2024 INSC 664

                      Somprabha Rana & Ors.
                                 v.
                 The State of Madhya Pradesh & Ors.
                     (Criminal Appeal No. 3821 of 2023)
                             06 September 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]

                            Issue for Consideration
       High Court, if justified in disturbing the custody of the child, aged
       one year and five months at the time of passing the order, by
       handing over the custody of the child to her father and paternal
       side relatives from the custody of her maternal side relatives.

                                  Headnotes†
       Constitution of India – Art. 226 – Writ of Habeas Corpus under,
       seeking custody of minor – Minor child aged 11 months, in
       custody of maternal side relatives after the unatural death
       of her mother – Arrest of father in connection with mother’s
       death, however later released on bail – Habeas Corpus petition,
       wherein the High Court directed the maternal relatives to
       hand over custody of the child to the father and his family –
       Correctness:
       Held: When the Court deals with the issue of habeas corpus
       regarding a minor, the court cannot treat the child as a 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 – Court has to act based on humanitarian
       considerations – Court cannot ignore the doctrine of parens patriae –
       On facts, High Court did not deal with and consider the issue of
       the welfare of the child – High Court disturbed the child’s custody
       based only on the father’s right as a natural guardian – Child had
       been in the custody of the appellants-maternal side relatives from
       the tender age of 11 months after her mother’s death, for more
       than one and a half years – Thus, not a case where custody
       of the child could be disturbed in a petition u/Art. 226 – At this
       tender age, if custody of the child is immediately transferred to
       the father and grandparents, the child would become miserable
       as she has not met them for a considerably long time – Moreover,

* Author
[2024] 9 S.C.R.                                                                65

    Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.


     no allegation that the child is not being looked after properly by
     the appellants – Even assuming that the father is not entitled to
     custody, at this stage, he is entitled to have access to meet the
     child, in the child’s best interest that she knows her father and
     grandparents and remains with them for some time to begin
     with – Father has shown unwillingness to apply for custody, orders
     of the Court regarding custody not final – Thus, it is proposed
     to permit the appellants or any of them to apply for custody to
     the Regular Court under the GW Act – Impugned judgment and
     order set aside – Writ Petition dismissed not on merits but on
     the ground that the discretion could not have been exercised u/
     Art. 226 to disturb the custody at this stage – Appellants to give
     access to the father and paternal grandparents of the child to
     meet the child once a fortnight – Order of access to continue for
     stipulated period, thereafter, would be open to be modified by the
     trial court – Guardians and Wards Act, 1890. [Paras 8-14]
     Writ – Writ of Habeas Corpus – Nature of – Custody of the minor:
     Held: Writ of Habeas corpus is a prerogative writ – It is an
     extraordinary and discretionary remedy – High Court always has the
     discretion not to exercise the writ jurisdiction depending upon the
     facts of the individual cases – Even if the High Court, in a petition of
     Habeas Corpus, finds that custody of the child by the respondents
     was illegal, in a given case, the High Court can decline to exercise
     jurisdiction u/Art. 226 if the High Court is of the view that at the
     stage at which the Habeas Corpus was sought, it would not be in
     the welfare and interests of the minor to disturb his/her custody –
     As regards, the custody of the minor children, the only paramount
     consideration is the welfare of the minor – Parties’ rights cannot
     be allowed to override the child’s welfare. [Para 6]
     Custody matters – Custody of minor – Procedings before the
     Regular Civil/Family Court:
     Held: Only in substantive proceedings under the GW Act can
     the appropriate Court decide the issue of the child custody and
     guardianship – Regular Civil/Family Court dealing with child custody
     cases is in an advantageous position – Court can frequently
     interact with the child – Practically, all Family Courts have a
     child centre/play area – 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 –
     Moreover, the Court dealing with custody matters can record
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      evidence – 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. [Paras 10]

                               Case Law Cited
      Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors.
      [2019] 7 SCR 335 : (2019) 7 SCC 45; Swaminathan Kunchu
      Acharya v. The State of Gujarat [2022] 6 SCR 727 : (2022) 8
      SCC 804; Gautam Kumar Das v. NCT of Delhi & Others [2024] 8
      SCR 451 : (2024) INSC 610; Nirmala v. Kulwant Singh and Others
      (2024) SCC OnLine SC 758 – referred to.

                                 List of Acts
      Constitution of India; Penal Code, 1860; Dowry Prohibition Act,
      1961; Guardians and Wards Act, 1890.

                              List of Keywords
      Custody; Custody of minor; Writ of Habeas Corpus u/Art. 226;
      Habeas corpus; Humanitarian considerations; Welfare of the
      child; Child custody and guardianship; Order of access to
      child; Psychological assessment of the child; Prerogative writ;
      Extraordinary and discretionary remedy; Doctrine of parens patriae.

                             Case Arising From

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3821
      of 2023
      From the Judgment and Order dated 23.06.2023 of the High Court
      of M.P. at Indore in WP No. 11004 of 2023

                          Appearances for Parties

      Gagan Gupta, Sr. Adv., Nikhil Jain, Saurabh Singh, Divyansh Singh,
      Advs. for the Appellants.
      P.S. Patwalia, Sr. Adv., Pashupathi Nath Razdan, Ajay Sharma,
      Mirza Kayesh Begg, Ms. Maitreyee Jagat Joshi, Astik Gupta, Ms.
      Akanksha Tomar, Argha Roy, Ms. Ojaswini Gupta, Ms. Ruby, Zartab
      Anwar, Santosh Kumar, Rishiraj Trivedi, Madhurendra Sharma, Rajiv
      R. Mishra, Ms. Suruchi Yadav, Aditi Shivadhatri, Yadav Narender
      Singh, Advs. for the Respondents.
[2024] 9 S.C.R.                                                          67

     Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.


                 Judgment / Order of the Supreme Court
                                 Judgment
      Abhay S. Oka, J.

      FACTUAL ASPECTS
1.    This appeal arises from a very unfortunate dispute about the custody
      of a female child (for short, ‘the child’) whose present age is two
      years and seven months. The mother of the child unfortunately
      died an unnatural death on 27th December 2022. It is alleged that
      the death of the mother was by hanging. The 4th respondent is the
      father of the child. The 2nd and 3rd respondents are the paternal
      grandparents of the child. The 5th respondent is the sister-in-law of
      the 4th respondent (his brother’s wife). The 1st to 3rd appellants are
      the real sisters of the deceased mother. The 4th and 5th appellants are
      the child’s maternal grandparents, who were not the parties before
      the High Court. The 5th respondent is also a real sister of the child’s
      mother. The 5th respondent is the wife of the 4th respondent’s brother.
2.    The 2nd to 4th respondents invoked the jurisdiction of the Madhya
      Pradesh High Court by filing a petition seeking a writ of Habeas
      Corpus under Article 226 of the Constitution of India. A case made
      out in the petition was that the 4th respondent and the mother of
      the child were residing in Indore, where the unnatural death of the
      mother occurred. A First Information Report was registered against
      the 2nd and 4th respondents for offences punishable under Sections
      304-B and 498-A of the Indian Penal Code and Sections 3 and 4 of
      the Dowry Prohibition Act, 1961. According to the case of the 2nd to
      5th respondents, the 2nd and 3rd appellants came to Indore on 28th
      December 2022. When the 4th respondent was busy completing
      the formalities of the post-mortem, without the consent of the 4th
      respondent, the 2nd and 3rd appellants took away the minor child.
      The 4th respondent - the father, was arrested in connection with
      the offence on 19th February 2023 and was granted bail after filing
      the charge sheet on 19th April 2023. The petition under Article 226
      filed by the 2nd to 5th respondents proceeded on the allegation that
      the 2nd and 3rd appellants illegally took over custody of the child.
      It must be noted here that on the date of death of the mother, the
      age of the child was 11 months.
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3.     By the impugned judgment dated 23rd June 2023, the Division Bench
       of the High Court of Madhya Pradesh at Indore allowed the writ
       petition. It issued a writ of Habeas corpus directing the appellants
       to hand over custody of the child to the 2nd to 5th respondents. On
       7th July 2023, this Court issued notice and granted a stay of the
       operation of the impugned judgment. On 5th December 2023, this
       Court granted leave and continued the stay. However, this Court
       observed that it would be open for the husband to apply for custody
       before the appropriate Court. As of this date, the husband has not
       applied for custody by filing proceedings under the Guardians and
       Wards Act, 1890 (for short, “the GW Act”). The appellants made such
       an application under the GW Act, but it was withdrawn later. This is
       the statement made by the learned counsel for the appellants. Now,
       the question is whether the High Court was justified in disturbing
       the custody of the child, whose age was one year and five months
       at the time of passing the impugned judgment.
       SUBMISSIONS
4.     The learned senior counsel appearing for the appellants urged that by
       the impugned judgment, without making any inquiry, the High Court
       has ordered the child’s custody to be disturbed based only on the
       legal rights of the child’s father and grandparents. He submitted that
       in the facts of the case, the High Court ought not to have entertained
       a petition for Habeas Corpus. He submitted that even if the petition
       was to be entertained, it was the duty of the Court to see what was
       in the best interests of the minor and custody could not have been
       disturbed at such tender age without considering the question of the
       welfare of the minor child.
5.     Learned senior counsel appearing for the respondents extensively
       relied upon decisions of this Court in the cases of Tejaswini Gaud
       & Ors. v. Shekhar Jagdish Prasad Tewari & Ors.,1 Swaminathan
       Kunchu Acharya v. The State of Gujarat 2 and Gautam Kumar
       Das v. NCT of Delhi & Others.3 Learned senior counsel would urge
       that the case of Gautam Kumar Das3 is identical on facts where the
       High Court had declined to entertain the petition for Habeas corpus


1     [2019] 7 SCR 335 : (2019) 7 SCC 45
2     [2022] 6 SCR 727 : (2022) 8 SCC 804
3     [2024] 8 SCR 451 : (2024) INSC 610
[2024] 9 S.C.R.                                                             69

     Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.


      by expressing a view that statutory remedy should be adopted for
      seeking custody. However, this Court interfered and granted the
      father custody of the minor child. He submitted that the father and his
      parents reside together and, therefore, are in a position to take the
      best possible care of the child. He submitted that the appellants have
      not allowed the father to see even the face of the child. The learned
      senior counsel appearing for the appellants relied upon a decision
      of this Court in the case of Nirmala v. Kulwant Singh and Others.4
      CONSIDERATION OF SUBMISSIONS
6.    After having perused various decisions of this Court, the broad
      propositions of settled law on the point can be summarised as follows:
      a.     Writ of Habeas corpus is a prerogative writ. It is an extraordinary
             remedy. It is a discretionary remedy;
      b.     The High Court always has the discretion not to exercise the
             writ jurisdiction depending upon the facts of the case. It all
             depends on the facts of individual cases;
      c.     Even if the High Court, in a petition of Habeas Corpus, finds
             that custody of the child by the respondents was illegal, in a
             given case, the High Court can decline to exercise jurisdiction
             under Article 226 of the Constitution of India if the High Court is
             of the view that at the stage at which the Habeas Corpus was
             sought, it will not be in the welfare and interests of the minor
             to disturb his/her custody; and
      d.     As far as the decision regarding custody of the minor children is
             concerned, the only paramount consideration is the welfare of
             the minor. The parties’ rights cannot be allowed to override the
             child’s welfare. This principle also applies to a petition seeking
             Habeas Corpus concerning a minor.
7.    Now, we come to the impugned judgment. The reasons given by the
      Division Bench are found only in two paragraphs, namely, paragraphs
      nos. 10 and 11, which read thus:
             “10. From perusal of the Tejaswini Gaud & Ors. (supra),
             the Habeas Corpus proceeding is not to justify or examine



4    (2024) SCC OnLine SC 758
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           the legality of the custody. In the present case, the only
           thing which is required to be considered is whether the
           detention of the minor child by the parents or others was
           illegal and without any authority of law. It is the settled
           proposition of law that the Writ of Habeas Corpus is
           maintainable only if the person is able to prove that the
           Corpus is in illegal custody or is kept in illegal confinement.
           In the present case, admittedly the petitioners would
           have precedence over the respondent Nos. 3 and 4
           who are the relatives from the maternal side whereas
           the petitioner No. 3 is the biological father of the
           Corpus, therefore, the writ of Habeas Corpus is
           maintainable as well as the petitioners would have
           precedence for custody of the minor child qua the
           respondent Nos. 3 and 4.
           11. The writ of the Habeas Corpus for seeking custody of
           minor child is maintainable only if the Corpus is in illegal
           custody. In the present case, the custody/detention of
           a minor child by the respondent Nos. 3 and 4 who are
           not the natural guardian of the Corpus, are not entitled
           to her legal custody. Accordingly, the respondent Nos.3
           and 4 are directed to hand over the custody of the minor
           child namely XXXX to the petitioners within 15 days from
           the date of receipt of certified copy of the order.”
                                                     (emphasis added)
8.    It is apparent that the High Court has not dealt with and considered
      the issue of the welfare of the child. The High Court has disturbed the
      child’s custody based only on the father’s right as a natural guardian.
9.    The High Court was dealing with the custody of the child, whose age
      at that time was one year and five months. The child had been in
      the custody of the appellants from the tender age of 11 months after
      her mother died. The child, at present, has been in the custody of
      the appellants for more than one and a half years. When the Court
      deals with the issue of Habeas Corpus regarding a minor, the Court
      cannot treat the child as a 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 Court
      has to act based on humanitarian considerations. After all, the Court
[2024] 9 S.C.R.                                                          71

    Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.


     cannot ignore the doctrine of parens patriae. Learned senior counsel
     appearing for the 2nd to 5th respondents submitted that if the Court is
     of the view that there is no proper consideration by the High Court,
     the order of remand may be passed to the High Court.
10. We believe that considering the peculiar facts of the case and the
    child’s tender age, this is not a case where custody of the child
    can be disturbed in a petition under Article 226 of the Constitution
    of India. Only in substantive proceedings under the GW Act can
    the appropriate Court decide the issue of the child custody and
    guardianship. Regular Civil/Family Court dealing with child custody
    cases is in an advantageous position. The 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. Moreover, the
    Court dealing with custody matters can record evidence. 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.
11. Coming to the facts of the case, at this stage, it will be very difficult
    to decide whether the welfare of the minor child requires custody of
    the maternal aunts to be disturbed. The child has not seen the father
    and grandparents for over a year. At the tender age of two years and
    seven months, if custody of the child is immediately transferred to the
    father and grandparents, the child will become miserable as the child
    has not met them for a considerably long time. Moreover, even the
    contesting respondents have not alleged that the child is not being
    looked after properly by the appellants. Whether the father is entitled
    to custody or not is a matter to be decided by a competent court,
    but surely, even assuming that the father is not entitled to custody,
    at this stage, he is entitled to have access to meet the child. It is in
    the child’s best interest that she knows her father and grandparents
    and remains with them for some time to begin with.
12. We repeatedly asked the learned senior counsel representing the
    husband whether the husband was willing to apply for custody.
    However, he has shown unwillingness to apply for custody. The
    husband is a member of the Bar practising at the Indore Bench of
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      the Madhya Pradesh High Court. Even he was personally present
      during the hearing. However, the learned senior counsel appearing
      for the appellants stated that the appellants or any of them would
      apply for claiming declaration as a guardian and retaining the custody.
      The earlier application filed by the appellants has been withdrawn.
      However, orders of the Court regarding custody are never final.
      Therefore, we propose to permit the appellants or any of them to
      apply for custody to the Regular Court under the GW Act. Even in
      the petition filed by the appellants, the competent Court can permit
      the father to take over the custody if it is satisfied that the welfare
      of the minor requires custody to be granted to the father.
13. We propose to direct the appellants to give access to the father and
    paternal grandparents of the child to meet the child once a fortnight.
    To begin with, access can be provided in the office of the secretary of
    the District Legal Service Authority so that the secretary can supervise
    the access. We propose to direct the secretary of the District Legal
    Service Authority to take assistance from a child psychologist or a
    psychiatrist (preferably female) attached to a local public hospital.
    If no such expert is available with the local public hospital, such an
    expert can be appointed at the appellants’ cost. The expert will ensure
    that the child responds to the father and grandparents and interacts
    with them. The order of access shall continue for four months. After
    that, it will be open for the concerned Trial Court to modify this order
    of access in all respects. When the child becomes comfortable with
    his father and grandparents, the Court can also consider granting
    overnight access to the father and the grandparents.
14. Hence, we pass the following order:
      a.   Impugned judgment and order dated 23rd June, 2023 is set aside,
           and Writ Petition No. 11004 of 2023 is hereby dismissed. We
           make it clear that the Writ Petition is dismissed not on merits
           but on the ground that on facts, the discretion could not have
           been exercised under Article 226 of the Constitution of India to
           disturb the custody of the appellants at this stage;
      b.   On every 1st, 3rd and 5th Saturdays starting from 21st September
           2024, the appellants shall take the child to the office of the
           secretary of the District Legal Service Authority at district
           Panna in the State of Madhya Pradesh at 03.00 p.m. Under
           the supervision of the secretary of the District Legal Service
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    Somprabha Rana & Ors. v. The State of Madhya Pradesh & Ors.


           Authority, the father and grandparents of the child shall be
           permitted to meet the child till 05.00 p.m.;
     c.    The secretary of the District Legal Service Authority shall take
           the assistance of a child psychologist or a psychiatrist (preferably
           female) working in any local public hospital. If such experts are
           unavailable, the secretary shall privately engage one such expert
           at the appellants’ cost. The appellants will pay necessary charges
           as and when called upon by the secretary. The payment will be
           subject to the outcome of the proceedings for grant of custody;
     d.    The expert so appointed shall remain present at the time of
           access. The expert’s duty will be to persuade the child to interact
           with her father and grandparents. As regards the mode and
           manner of allowing the father and grandparents to meet the
           child, the parties and the secretary of the District Legal Service
           Authority shall be guided by the opinion of the expert;
     e.    As assured to the Court, the appellants or some of them shall file
           a petition seeking a declaration of guardianship and permanent
           custody of the child under the provisions of the GW Act before
           the competent Court within a maximum period of two months
           from today;
     f.    The concerned Court in which the application will be filed
           shall pass further orders regarding the grant of access and/or
           overnight custody to the husband and the grandparents. Further
           interim directions regarding access, overnight access, etc., shall
           be issued by the competent Court in which the appellants apply
           for custody. To enable the said court to pass an appropriate
           interim order, we direct that the interim arrangement made as
           above for the grant of access to the father and the grandparents
           will continue to operate for four months from today. Thereafter,
           the competent Court will deal with the prayer for interim relief
           on its own merits. Needless to add, in the event the husband
           and/or grandparents apply for custody, the application filed by
           them and the application filed by the appellants shall be heard
           together, and
     g.    In the event of failure of both parties to apply to the competent
           Court, the parties will be free to apply to this Court for appropriate
           directions.
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15. The appeal is, accordingly, partly allowed on the above terms.
16. We direct the registry to immediately forward a copy of this judgment
    to the secretary of the District Legal Service Authority at District
    Panna, State of Madhya Pradesh, who shall act upon the copy of
    the judgment provided by the registry of this Court. If the secretary of
    the District Legal Service Authority needs any further directions from
    this Court, it will be open for him to submit a report to the Registrar
    (Judicial) of this Court, who shall immediately place the same before
    this Bench and/or the appropriate Bench.
17. There will be no orders as to costs.

      Result of the case: Appeal partly allowed



      †
          Headnotes prepared by: Nidhi Jain