WRIT OF HABEAS CORPUS:
Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
DELHI HIGH COURT JUDGEMENT:
The Delhi High Court has held that the issue of paternity cannot be determined in a habeas corpus writ petition The court was dealing with a habeas corpus petition filed by the couple, claiming that a boy in the custody of Bal Sahyog, a child care NGO, was their lost son. They claimed that the boy showed a stark resemblance to their lost son and that his age was about the same as it would have been of their lost son.
As the minor’s welfare was not the issue raised in the current case, and given that he was not in illegal detention, the court said the parents’ plea was not maintainable.
A Habeas Corpus is filed in the case of unlawful detention or illegal custody.
The couple had urged that the boy should be handed over to them after conducting a paternity test.
The representing council con tended that the possibility of a failed DNA test could be contamination of sampling.
A bench of justices Manmohan and Sangita Dhingra Sehgal said, “In a petition asking for the writ of habeas corpus, this court is not entitled to examine the issue of paternity. The primary consideration of the court in a writ petition for custody of a minor is not the legal right of this or that party, but the welfare of the minor.”
The Court said, “Since the welfare of the minor is not the issue in the present case and further the minor is not in unauthorized and/or illegal detention of respondent no.3 (Bal Sahyog), this court is of the view that the present writ petition is not maintainable.”
The court also observed that it was the duty of the court to issue the writ of habeas corpus to safeguard the freedom of citizens against arbitrary and illegal detention.
A paternity issue cannot be examined in a writ of habeas corpus as it is issues for the illegal detention of person. This judgment was passed by Delhi high court in a case where a couple claimed that their minor missing son was in the custody of an orphanage.