The Allahabad High Court dismissed a habeas corpus petition filed on behalf of a seven-year-old girl by her mother stating that the mother, who had remarried, had not filed a petition for custody of the child with the appropriate legal forum.

The Allahabad High Court dismissed a habeas corpus petition filed on behalf of a seven-year-old girl, stating that the mother, who had remarried, had not filed a petition for custody of the child with the appropriate legal forum.

The contention of the case is that the corpus, the minor girl, is in the illegal custody on respondent no.4 & 5, who are the real grandmother and paternal uncle of the petitioner-corpus.

The court also noted that the facts did not suggest that the child was being illegally detained by respondents no.4 and are not true since the said respondents have not forcibly taken custody of the child.

Although the Honorable Court observed that the mother is entitled to the custody of her female child and observed that "The mother is entitled to the custody (hizanat) of her female child until she has attained puberty," the court said, citing Section 352 of Mulla's Principles of Mahomedan Law. "However, this right is lost if the mother remarries someone who is not related to the child within the prohibited degrees."

In this case, the mother had remarried and therefore lost her right to custody of the child.

The court further noted that the facts did not suggest that the child was being illegally detained by the respondent grandparents. The child had been in their custody since the death of her father in 2020, and there was no evidence that they were not providing proper care for her.

The Honorable Court examined whether the custody of the child is unlawful and illegal? The Court held that "The principal duty of the Court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person," the court said. "The principle is well settled that in such matters the welfare of the child is of paramount consideration." And handing over to the care and custody of any person other than the current guardian will be a matter where facts are disputed, and which is something that the parties have to take other legal available remedies and court refrain itself from exercising its extraordinary jurisdiction since, on prima facie, the corpus does not appear to be in the illegal custody of the respondent no.4 & 5.

Thus, considering the above facts and merits the court observed that the case is prima facie a matter of who to have a custody of a minor, rather than of illegal custody, and hence the court held that the writ of habeas corpus is not entertainable and liable to be dismissed.

The Honorable Court, however, stated that the dismissal of the petition does not prevent the parties from pursuing their custody rights in the concerned court.