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In a very intriguing judgment passed by the Hon’ble Supreme Court , it was held that, the writ of habeas corpus will be said to be maintainable if a minor child is detained by a parent or others without any authority of law.
This judgement upheld the decision of the Delhi High Court, which directed the relatives of a deceased woman to hand over the custody of the child to the father.In this present case of , Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari, the main question which was raised was that the writ of habeas corpus cannot be raised when an alternative remedy is available to the father under the provisions of the Hindu Minority and Guardianship Act, 1956.
The detention of a minor child by a person to whom the custody is not legally appointed amounts to illegal detention and hence the writ can be granted. In cases where the restoration of custody to a minor child is not legal according to the personal law, the writ court will have jurisdiction.
In the entire, case, the prime objective is the welfare of the child and the principle of best interest which is very often seen in matters relating to children. In the instant case, the father of the child, is educated and has a reputed and stable financial condition, enough to sustain the child. Secondly, he has not abandoned the child , neglected his responsibilities or denied the child the love and affection, hence the custody can go to the father.
This case decided by Justice Banumathi and R. Subhash Reddy, is another example in which, the child’s interest was of paramount importance. The welfare of the child is of the greatest importance to a Court.
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