Kerala High Court: In a habeas corpus petition seeking custody of a minor who was taken away by the father in violation of a Family Court’s decree granting permanent custody to the mother, the Division Bench of Soumen Sen, CJ., and Syam Kumar V.M., J., held that the illegal removal of a child, despite a subsisting Family Court’s decree granting custody was unlawful and restored the child’s custody to the mother. The Court directed that the Calcutta High Court’s child custody guidelines must be followed by the Family Courts in Kerala till the committee constituted to consider the said plan had finally placed its recommendations.
Also Read: Calcutta HC mandates child access and custody guidelines
Background
A habeas corpus petition was filed by the mother, the natural guardian of the minor child, asserting that she had been granted permanent custody under a decree passed by the Family Court. It was alleged that the father removed the child from her custody while the child was in school, without informing her. The petitioner prayed that the child be returned to her in terms of the Family Court’s decree. Though execution proceedings were available, the petition was filed seeking the child’s custody.
On the other hand, the father contended that the child had complained about the mother and that he was denied access and visitation rights by the compromise decree. A reference was made to an order permitting the child to stay temporarily with the father. However, despite the passage of more than a month after such order, the child had not been returned to the mother.
Analysis
The Court interacted independently with the minor and the parents. During the interaction, the minor clearly expressed his desire to reside with the mother, though he earlier stated that he would like to go with the father, which was considered not to have been made out of free will.
The Court noted that the father had been given a temporary order by the Family Court on 24 April 2026 permitting the child to stay with him for a few days, but more than a month had passed without return. It was, hence, observed that the father acted in breach of the assurance given to the Family Court by failing to return the child to the mother. The Court opined that the father ought to have filed an application for modification of the compromise decree and could not have taken the law into his own hands by removing the child from the mother’s custody in utter violation of the decree. The Court emphasised that it was unfortunate that the child was being treated like a pawn in the hands of the parents. The Court observed that the child must be returned to the mother, who shall continue to be the guardian of the child until the Family Court’s order was modified, but it would not influence the execution proceedings pending before the Family Court.
The Court clarified that in determining custody and access issues, the Family Court may be guided by the guidelines for child access, child custody along with parental plan as formulated by the Calcutta High Court in Antara v. High Court of Calcutta, 2025 SCC OnLine Cal 8286. The Court directed that the comprehensive child access and custody guidelines would be followed by the Family Courts in Kerala till the committee constituted to consider the said plan had finally placed its recommendations.
Additionally, the Court directed the Child Welfare Officer to file a social investigation report to assist the Family Court in arriving at appropriate conclusions in the execution proceedings. The Court also reiterated that all the terms of the compromise decree must be strictly followed by the parents.
Also Read: Del HC on formulation of Child Access and Custody Guidelines
Decision
The Court directed that custody be handed over to the mother in Court itself and expressed hope that the parties would take informed decisions in pending mediation proceedings, guided by the child’s welfare.
[Hayarunisa Abdul Hakkim v. State of Kerala, W.P.(Crl.) No. 820 of 2026, decided on 1-6-2026]
Advocates who appeared in this case:
For the Petitioner: Navaneeth. N. Nath, Abhirami S., Abdul Latheef P.M., Krupa Saji, Arun Gopi G. L., Advocates.
For the Respondents: Reginald Valsalan, Ann Maria Francis, Advocates.
