Can a writ of habeas corpus be issued in matters of child custody? Allahabad HC explains

“In child custody matters, the remedy ordinarily lies under the statutory law, or the personal law, as applicable in the facts of the case; however, in cases which justify the exercise of the extraordinary discretionary jurisdiction under Article 226, a writ of habeas corpus would be issued where it is demonstrated that the detention of minor child, is illegal or without any authority of law.”

Allahabad High Court

Allahabad High Court: In a habeas corpus petition filed by a mother, seeking custody of her minor daughter, Dr. Yogendra Kumar Srivastava, J., granted the mother’s request for custody and said that although a writ of habeas corpus would not ordinarily apply to matters relating to custody, as the usual remedy lies under statutory or personal law, it can be issued in cases warranting the exercise of extraordinary discretionary jurisdiction under Article 226 and that such a writ can be allowed when it is shown that the minor child’s detention is illegal or without legal authority.


The petitioners are a mother and her minor daughter. On 8-09-2023, the mother, was ousted from her matrimonial home by her husband Subsequently, the husband left the country, leaving their minor daughter (corpus) who was less than two years old at that time, in the custody of the child’s grandmother. The mother filed a habeas corpus petition, asserting that the grandmother was illegally detaining her minor daughter.

Following the issuance of a rule nisi, the minor child was produced in Court on 16-04-2024 by the State Authorities along with the grandmother. By way of an interim arrangement and with the agreement of the parties’ counsel, the Court allowed the mother to take custody of her daughter. On the next Court date, the mother appeared with the minor child. It was noted that the father was still abroad, with no information on his return. The mother affirmed her capability and means to take care of her daughter.

Decision and Analysis

The Court noted that in a petition seeking a writ of habeas corpus concerning the custody of a minor child, the primary duty of the Court is to determine whether the child’s custody is unlawful or illegal and whether the child’s welfare necessitates a change in custody to someone else. The foremost consideration in such cases is the child’s welfare, with the Court’s role grounded in the principles of parens patriae jurisdiction.

The Court said that in child custody matters, remedies are generally found under statutory or personal law, depending on the case’s facts, however, in situations warranting the exercise of the Court’s extraordinary discretionary jurisdiction under Article 226, a writ of habeas corpus can be issued if it is shown that the minor child’s detention is illegal or lacks legal authority.

The Court referred to both statutory law and personal law to guide its decision and noted that according to Section 17 of the Guardians and Wards Act, 1890 (‘GWA’), the welfare of the minor is the paramount consideration in deciding guardianship matters and further this section mandates that the Court’s decisions should align with the minor’s welfare and the law to which the minor is subject. The Court further noted that the Principles of Mahomedan Law, particularly Section 352, entitle the mother to the custody (hizanat) of her male child until he reaches the age of seven and her female child until she attains puberty, unless the mother remarries.

In light of these provisions, the Court noted that the mother had a legal right to the custody of her minor daughter under the applicable personal law. The detention of the minor by grandmother, in these circumstances, was prima facie illegal. The Court also emphasized that in habeas corpus proceedings involving child custody, the paramount consideration is the child’s welfare. This required the Court to act as parens patriae, a principle that positions the Court as the protector of those who cannot protect themselves, such as minors.

The Court, therefore, disposed of the petition, concluded that the interim arrangement, which allowed mother to retain custody of her daughter, should continue and made the previously issued rule absolute, allowing the mother to continue custody of her minor daughter. The Court further encouraged the parties to seek reconciliation and clarified that any further disputes regarding guardianship or custody should be addressed through appropriate statutory remedies.

[Ayra Khan v. State of UP, 2024 SCC OnLine All 2426, Order dated 28-05-2024]

Advocates who appeared in this case :

Advocate for Petitioner: Advocate Akhilesh Kumar Tiwari

Advocate for State: Government Advocate

Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.