What is a writ and its various types
A writ is generally used to protect the rights of an individual or to ensure the proper functioning of the system of justice. When a writ petition is filed, a court of higher rank demands the lower court to take a particular action to preserve the rights of a country and its citizens. Broadly classifying, there are several of types of writs in the judicial system; a few of these are discussed below.
The general Writ of Habeas Corpus definition states that a person should be released from detention if a writ is filed to present the defendant in court so as to argue the petitions filed in the charge sheet. The writ preserves the right of a citizen from being arrested unlawfully.
The phrase ‘Habeas Corpus’ is derived from the Latin language which means ‘You have the body”. If the detention does not have any legal basis, it will be annulled by the court, which should be respected by the detaining person or authority. It is also used when the life of a person is in danger following improper jail conditions or other risks during detention.
Definition of the writ of habeas corpus
As the name suggests, the writ of prohibition is used by a body with administrative or judicial jurisdiction to prohibit a lower court from taking action on a particular case. The higher court will consider the case following this. This writ is used when it occurs that the lower court is outside jurisdiction to handle the particular case.
This writ is used to make sure that the Government system and its officers are following their duties properly. An administrative body of higher rank gives the writ of Mandamus to a subordinate court, corporation or public authority to demand additional care to be given on their duties and functions. The concerned authorities are required to forbear from doing certain acts that are unlawful.
Unlike the above-mentioned writs, this writ is filed by the lower court. It is used when a subordinate court finds that the decision made by a superior court appears to be inapt. The higher court will then be asked to review the decision it made and take required actions to fix it or take it back.
The parliament sometimes exercises the ‘dropping the writ’ where the parliament dissolute and begins an election campaign to form a new writ. The writ of habeas corpus definition is the most referred writ in the judiciary system.
How to file a writ of Habeas corpus petition
Habeas Corpus is a writ or procedure that protects a person from illegal detention by another person(s) or other authorities by being ordered to appear in court to argue their case against such a detention. In such case, the holding authority has to comply with the court’s ruling and present the detainee failing which he or she could be tried for contempt. Although usually used in criminal cases, this procedure can be also used for family law disputes. The writ of habeas corpus is a protection force against violation of a person’s fundamental right of freedom.
For example, a parent can try to secure the custody of a minor child if it happens that the other parent has taken illegal custody of the same. Thus, according to the writ of habeas corpus definition, the dispute will have to be taken to court and the arguments of both parents will be heard.
Given below are the guidelines to file a family law based writ of habeas corpus:
Steps for filing the writ in family law cases
- Consult a lawyer and discuss your case. The lawyer will then prepare a case and decide how the petition will be filed.
- Verify which court has jurisdiction to hear your writ. The Supreme Court has jurisdiction to hear the writ in New York and the Superior Court in Georgia.
- Fill the writ with all the required details. The case petition is to be written at the top of the writ defining the various fields. The writ of habeas corpus definition should include the name of the court, the county and the state from where you are filing the petition.
- In the “Petitioner” field, write your name. Fill in the “Respondent” field as “v. [Person wrongfully detaining child]“.
- Center the title and write it under the case caption. Label the title as “Petition for Habeas Corpus.
- Mention the reasons for filing the writ. Write in detail the events the occurred that made you file the case. Mention about yourself and how your child was wrongfully detained.
- Take a copy of the petition and send it to the clerk in the court who has jurisdiction.
- Along with the petition, mention the details of the current location of the respondent so that the court can send a notice and a copy of the document.
A minimum of ten days is granted to the defendant to appear before the court along with the detainee.