Kerala High Court: In a habeas corpus petition claiming custody of a minor who was placed in a hostel by the mother after her second marriage despite the willingness of the biological father to take care, the Division Bench of Raja Vijayaraghavan V.* and K.V. Jayakumar, JJ., while allowing the writ petition, entrusted the child’s custody to the father holding that placing the child in a hostel meant for orphans by the mother was not in his best interests. The Court also directed the District Child Protection Officer to conduct periodic inspections to monitor the child’s well-being.
Also read: Custody of Children
Background
The petitioner had married Respondent 8 (mother) on 30 December 2010, and he was the biological father and natural guardian of a minor boy aged about eleven years. However, the marital relationship became strained, and the parties started living separately. The child had originally been residing with the petitioner and pursuing his education until 2021, after which the child was taken to another district with the petitioner’s consent and thereafter remained in the custody of the mother.
It was alleged that the mother remarried and began residing separately, leaving the child in the care of his maternal grandmother. The petitioner contended that the grandmother, owing to her advanced age and health issues, could not properly care for the child, who suffered from asthma and was not receiving adequate food or proper medical care. The petitioner also lodged complaints before the District Child Protection Unit (DCPU) and the Child Welfare Committee (CWC), following which the child was shifted to a junior hostel. It was argued that the petitioner, being the biological father and natural guardian, was entitled to the custody of the child, especially in view of the child’s wishes. Despite service of notice, the mother and grandmother did not appear before the Court or contest the claims.
Analysis and Decision
The Court noted at the outset that a report submitted by the DCPU revealed strained relations between the mother and grandmother and confirmed that the child had been rescued by the Juvenile Wing and placed in the hotel. The Court highlighted that the child had informed the Child Protection Officer that he shared a good relationship with his father and expressed a desire to reside with him.
The Court interacted with the child wherein he stated that he was not being properly looked after while staying with his grandmother, and that he was not provided adequate food, particularly in the mornings and that his only substantial meal was the lunch provided at school. The Court also interacted with the petitioner, his sister, and the child’s grandfather, and they extended assurance regarding the child’s future welfare and education. Consequently, the Court opined that the interest of the child would be protected if the child is in his father’s company and the welfare and best interests of the child would be adequately safeguarded.
While addressing the concerns raised in the Child Protection Officer’s report regarding the petitioner’s alleged alcohol consumption, the Court observed that the petitioner had stated he was not a habitual user and had undertaken to reform himself and ensure proper care of the child. The Court also emphasised that the continued placement of the child in an institution meant for orphaned children could not be regarded as being in his best interests.
Consequently, the Court, while allowing the petition, concluded that the petitioner would be entitled to the custody of the child, being the father and the natural guardian of the minor. The Court clarified that it would be open for the mother to approach the jurisdictional Family Court and seek custody. Further, the Court also directed periodic inspections by the District Child Protection Officer and if the child’s welfare is found to be at risk, the said officer must inform the CWC, which would take appropriate remedial measures or report the matter before the Court.
[X v. State of Kerala, 2026 SCC OnLine Ker 3988, decided on 30-3-2026]
*Judgment authored by: Justice Raja Vijayaraghavan V
Advocates who appeared in this case:
For the Petitioner: Gikku Jacob, Advocate.
For the Respondents: Anas K A, GP., Kiran Johny, Advocate.
