Can't treat child as moveable property in custody matters: Supreme Court

New Delhi: The Supreme Court has said the court cannot treat a child as a movable property and transfer her custody without even considering its impact upon her or her best interest, while dealing with a habeas corpus petition.

A bench of Justices Abhay S Oka and Augustine George Masih said custody issues cannot be decided mechanically and the court has to act based on humanitarian considerations, after all, it cannot ignore the doctrine of parens patriae.

"Only in substantive proceedings under the Guardians and Wards Act, 1890 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," the bench said.

In its judgment on September 6, 2024, the court partly allowed an appeal against the Madhya Pradesh High Court's order which, acting on a habeas corpus petition, granted him custody of his daughter, presently aged two years and seven months, from maternal aunts of the child. The bench, however, granted the child's father and grandparents access to her for four months.

The bench said the competent court, thereafter, will deal with the prayer for interim relief on its own merits.

"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 she has not met them for a considerably long time," the bench said.

On a plea by the maternal aunts of the child, the bench held the High Court has not dealt with and considered the issue of the welfare of the child as it disturbed the her custody based only on the father's right as a natural guardian.

The court said, "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, it can decline to exercise jurisdiction under Article 226 of the Constitution if it 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."

The court also emphasised the only paramount consideration in deciding the custody of the child is her welfare. "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," the bench said, summarising the propositions of settled law.