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Allahabad High Court: In a habeas corpus writ petition filed seeking production of children alleging forceful custody by father, the Single Judge Bench of Anil Kumar-X, J., held that such petitions are not maintainable in ordinary inter-parental custody disputes unless the custody is shown to be illegal or without authority of law. Finding no exceptional circumstance to warrant interference, the Court dismissed the petition.
Background
The petitioner-mother contended that after matrimonial discord, the father forcibly took away the two minor children, Devansh, aged about 14 years and Awani, aged about 10 years, in 2022 out of her matrimonial home at gunpoint and kept them in illegal custody. It was argued that habeas corpus is maintainable even against the other parent in the interest of the child. The respondents opposed the plea, submitting that the father is a natural guardian and that the appropriate remedy lies before the competent court under the Guardians and Wards Act, 1890, which the petitioner has not availed and contended that custody disputes cannot be adjudicated between.
Analysis
The Court observed that in Rinku Ram v. State of U.P., 2026 SCC OnLine All 2065, the Division Bench of this Court observed that the extraordinary writ jurisdiction may be invoked where the welfare of the child so demands, however the facts of the case was that the child had been forcibly taken in violation of an order passed by the Child Welfare Committee.
Relying upon Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, the Court reiterated that ordinarily a writ of habeas corpus in child custody matters is an extraordinary remedy, used only when the custody of a child is illegal or without authority of law and that it is meant to ensure the welfare of the child and not to decide detailed custody rights. It emphasised that such disputes should be resolved under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956.
The Court considered, whether a bald allegation by one parent against the other parent that the minors were forcibly taken away would be sufficient to invoke the jurisdiction of a writ of habeas corpus, and noted that basic requirement for invoking habeas corpus is that the corpus must be shown to be in illegal detention. The Court further examined whether a minor living with one parent, without the consent of the other, can by itself be presumed to be in illegal custody.
The Court examined the ingredients of Section 361, Penal Code, 1860 and observed that the emphasis of the provision is on taking a minor “out of the keeping of the lawful guardian” and it clearly signifies that the offence would be attracted only when the minor is removed from the custody of a person who is legally recognised as the guardian, and the person taking the minor is not himself a lawful guardian and if the person taking the minor is himself a lawful guardian, the essential ingredient of the offence fails.
The Court further examined Section 6, Hindu Minority and Guardianship Act, 1956, and observed that the statute itself recognises the father as a natural guardian, it then went through the Section 4(2), Guardians and Wards Act, 1890, and on combined reading of these provisions, it emphasised that both parents have a legally recognised status in relation to the minor, and that disputes regarding custody are essentially civil disputes to be adjudicated by the competent court.
The Court further held that mere allegation of forcible removal of minors by the father does not render custody illegal, as the father is recognised as a natural guardian under law. The Court followed Ashok Kumar Seth v. State of Orissa, 2002 SCC OnLine Ori 138, and noted that such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition. Accordingly, such an allegation alone does not justify invoking habeas corpus jurisdiction, which is an extraordinary remedy and to be used sparingly and only where custody is clearly illegal or without authority of law.
Observing that the children being above five years, had been residing with the father since 2022 and no extraordinary circumstance was shown. It noted that habeas corpus cannot substitute remedies under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, where custody issues should be properly adjudicated based on the child’s welfare.
the Court held that the petition was not maintainable.
[Anjali Devi v. State of U.P., HABC No. 387 of 2026, decided on 10-4-2026]
Advocates who appeared in this case:
For the petitioner: Pradeep Kumar Singh, Rahul Shukla
For the respondent: Amit Kumar Chaudhary, G.A.
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