Legally Bharat

Supreme Court of India

Somprabha Rana vs The State Of Madhya Pradesh on 6 September, 2024

Author: Abhay S. Oka

Bench: Abhay S Oka

2024 INSC 664


                                                                                  Reportable
                                        IN THE SUPREME COURT OF INDIA
                                       CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 3821 OF 2023

                            Somprabha Rana & Ors.                              … Appellants



                                                         versus



                            The State of Madhya Pradesh & Ors.               ... Respondents


                                                 J U D G M E N T

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
Signature Not Verified

Digitally signed by
maternal grandparents, who were not the parties before the
ASHISH KONDLE

High Court. The 5th respondent is also a real sister of the child’s
Date: 2024.09.06
16:48:31 IST
Reason:

Criminal Appeal No.3821 of 2023 Page 1 of 12

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.

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

Criminal Appeal No.3821 of 2023 Page 2 of 12
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.

Criminal Appeal No.3821 of 2023 Page 3 of 12

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
Gujarat2 and Gautam Kumar Das v. NCT of Delhi &
Others3. 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
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 Others4.

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;

1 (2019) 7 SCC 45
2
(2022) 8 SCC 804
3
(2024) INSC 610
4
(2024) SCC OnLine SC 758

Criminal Appeal No.3821 of 2023 Page 4 of 12
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 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

Criminal Appeal No.3821 of 2023 Page 5 of 12
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

Criminal Appeal No.3821 of 2023 Page 6 of 12
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 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

Criminal Appeal No.3821 of 2023 Page 7 of 12
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 the Madhya Pradesh High
Court. Even he was personally present during the hearing.
However, the learned senior counsel appearing for the

Criminal Appeal No.3821 of 2023 Page 8 of 12
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.

Criminal Appeal No.3821 of 2023 Page 9 of 12

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 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;

Criminal Appeal No.3821 of 2023 Page 10 of 12

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

Criminal Appeal No.3821 of 2023 Page 11 of 12
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.

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.

……………………………….J.
(Abhay S Oka)

..…………………………….J.
(Augustine George Masih)
New Delhi;

September 6, 2024.

Criminal Appeal No.3821 of 2023 Page 12 of 12

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