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Judgment
Oral Judgment (Per Urmila Joshi-Phalke, J.)
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.
By this petition, the petitioner seeks the issuance of a writ of habeas corpus. The petitioner is the mother of a minor girl (name of the girl is not mentioned) aged 17 years having date of birth as 19-07-2008. As per the contention of the petitioner, at the relevant time, she was 17 years of age and was studying in Class XII in A.R. Fule College Prem Nagar, Nagpur. On 12.11.2025, the petitioner's daughter left the house at about 12:30 p.m. and did not return thereafter. The petitioner went to her daughter's tuition class and made inquiries; however, her daughter could not be traced. Consequently, the petitioner approached the concerned Police Station and lodged First Information Report (FIR) No. 905/2025 under Section 137(3) of the Bharatiya Nyaya Sanhita, 2023. Later on, the victim girl was traced and her custody has been restored to the petitioner. On 26-11-2026 again the daughter of the petitioner went to the tuition class and not returned back and it was found in the CCTV Camera that she went alongwith respondent no.5. Again the petitioner has lodged the report at Panchpaoli Police Station vide Crime No.950/2025 punishable under Section 137(2) of the B.N.S. Again she was searched and custody was handed over to the present petitioner. Again on 20-01-2026 she has attended the class and not returned back. Again third complaint was lodged against respondent no.5 vide Crime No.21/2026. However, the Police was not registered the offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) against respondent no.5 and Police have not taken any cognizance of the report filed by the present petitioner and therefore she approached to this Court. It is the contention of the petitioner that it was the respondent no.5 who has taken her daughter and illegally detained her and therefore writ of habeas corpus be issued against present respondent no.5. It is submitted that the girl was minor at the relevant time and respondent no.5 has illegally detained her in his custody.
Heard learned counsel for the petitioner. She reiterated the contentions raised in the petition and submitted that the girl was a minor at the relevant point of time. It was contended that she had been taken away from the custody of the petitioner and that her custody had not been restored. It was, therefore, submitted that the continued custody of the minor girl with respondent No. 5 amounts to illegal detention, warranting issuance of a writ of habeas corpus. Accordingly, it was prayed that the petition be allowed.
Per contra, learned APP though supported the contention of the petitioner but, submitted that appropriate order shall be passed.
Learned Counsel appearing for respondent no.5 submits that there was love affair between the daughter of the petitioner and respondent no.5. Out of love affair the daughter has joined the company of the present respondent no.5 and as soon as she attained the age of majority, i.e 18 years, they performed the marriage; therefore, the case of illegal dentition is not made out. Therefore, the petition deserves to be dismissed.
Upon hearing the learned counsel for the parties and on perusal of the record, it reveals that three criminal cases have been registered against respondent No. 5, bearing Crime Nos. 905/2025, 950/2025 and 21/2026. The offence was registered against respondent no.5. The CCTV camera recording also discloses that she went along with respondent no.5. Therefore, respondent no.5 was directed to secure the presence of the girl and therefore the girl and respondent no.5 both appeared before this Court. We have interviewed the girl. During interaction the girl states that she at her own accord, out of love affair, left the company of the petitioner and joined the company of respondent no.5. Admittedly, at the relevant time the girl was on the verge of attaining the age of majority. At this stage, the only question that falls for consideration is whether the detention of the girl is illegal. Admittedly, the statement of the girl shows that out of love affair she joined the company of the present respondent no.5 and, therefore, it could not be said that it is illegal detention. The law relating to the issuance of a writ of habeas corpus is well settled. The essential pre-condition for issuing a writ of habeas corpus is the establishment of illegal detention. In the present case, such illegal detention is not established. The girl specifically stated before the Court that as she is having love affair and now she got married with the present respondent no.5 and she wants to reside along with respondent no.5. Admittedly, paramount consideration is the welfare of the child, but considering that the girl has already attained the age of majority and she has right to choose her life partner and therefore it cannot be said that it is an illegal detention. In catena of decisions it is held by the Hon’ble Apex Court that the writ of habeas corpus is a prerogative writ. The guidelines are issued by the Hon’ble Apex Court in the case of Somprabha Rana and Ors vs State of Madhya Pradesh and Ors, reported in (2024)9 SCC 382. The guidelines issued in this regard are reproduced hereinbelow :
“10.Before entering into the merits of the matter, it is necessary to consider broad proposition of the settled law on the point of writ of habeas corpus summarized by the Hon'ble Apex Court in the case of Somprabha Rana and ors vs. State of Madhya Pradesh and ors supra, which are as follows:
"a. Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy;
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."
15.In the case of Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari, reported in (2019) 7 SCC 42, wherein the Hon'ble Apex Court observed that, "habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. 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. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. The writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 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."
19.Thus, the settled law is that a writ of habeas corpus is maintainable only when it is proved that detention of minor child by parents or otherwise was illegal or without any authority of law and hence in a peculiar facts and circumstances of the case, the order of the High Court grating writ of habeas corpus is justified one.”
In view of the above guidelines and applying the said to the present case, it reveals that the victim girl suo motu joined the company of respondent no.5. Now she has attained the age of majority. As we have already observed that she has right to choose her life partner, accordingly, she has chosen. Admittedly, children are not the property of their parents, and therefore, the parents cannot claim any right to retain them against their wishes. Therefore, the contention of learned Counsel for the petitioner deserves to be rejected.
Accordingly, the writ petition is dismissed.
Rule stands discharged.