The Delhi High Court has held that the issue of paternity cannot be determined in a habeas corpus writ petition after a couple moved the plea seeking custody of a boy in a shelter home, claiming that he was their lost son.
The court dismissed the couple's plea, while granting them liberty to file appropriate legal proceedings to seek declaration as parents and custody of the minor.
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.
A habeas corpus petition is filed for producing before a court a person who is under arrest or in unlawful detention.
The couple had urged that the boy should be handed over to them after conducting a paternity test.
Their counsel had submitted that the possibility of two failed DNA tests could be attributed to erroneous sampling or 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."
It said, "Since the welfare of the minor is not the issue in the present case and further the minor is not in unauthorised and/or illegal detention of respondent no.3 (Bal Sahyog), this court is of the view that the present writ petition is not maintainable."
It 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.
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