Habeas corpus can't be used for getting kids' custody

"You cannot invoke writ jurisdiction of habeas corpus when minor children are in mother's custody," the Supreme Court said.

The Supreme Court has said that the remedy of habeas corpus cannot be invoked against the mother to get custody of minor children, dealing a blow to an Afghanistan national, who claimed his wife has run away with kids after being enticed away by another man.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, however, said petitioner Habib Ullah Shaida, who lived in Munich, can approach the competent family court.

Advocate Suleiman M Khan, representing the petitioner, contended the Delhi High Court has wrongly dismissed his plea on the ground that the children were disinclined to meet him and there was nothing to show their overall development would be harmed during their stay in India.

"You cannot invoke writ jurisdiction of habeas corpus when minor children are in mother's custody," the bench said.

The counsel claimed that the mother, who is an uneducated woman in a foreign land with two children aged nine years and four years, with no regular source of income and living as a refugee will definitely hamper the best interest of the children.

He said the issues arising in the instant case was of the native country of the children and it is in the best interest of the children that all issues are decided by the courts in Afghanistan only.

"We think, the petitioner should approach the competent family court," the bench said while disposing of the plea.

The petitioner said, he came with the wife and children to India for tourism on March 8, last year.

He claimed his wife came in contact with one Zamir Khan and raised false allegations of cruelty, though such a complaint was never made earlier.

He said she had also obtained the status of a refugee here.