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  • The detention of a minor child by a parent or others if proved had taken place illegally and without legal authorization, the writ of habeas corpus can be invoked in cases of child custody.
  • The Hindu Minority and Guardianship Act 1956 or the Guardians and Wards Act 1890, are the laws that are generally referred to for relief, and only in rare cases, the parties' rights to the minor's custody would be considered in order to exercise extraordinary jurisdiction of the court through the writ of habeas corpus.
  • The Karnataka High Court recently dismissed a petition filed by a father seeking directions to produce his 2-year-old daughter before the court, who is in the safe custody of her mother, and imposed a cost of Rs 50,000 on him, stating that no ground to allow the writ petition is made by the petitioner and therefore has abused the judicial process.


Child custody is a phrase that is used to denote the legal relationship that exists between a parent or the guardian and the child under their care. It basically relates to the parental rights and duties for the care of their children. To put it in simpler terms, after the parents’ divorce, custody involves caring for and controlling the children so the court will determine who gets the custody and who would get the visitation rights so that the child is not deprived of the love and care of either parent.

When there arises a conflict on child custody, we refer to the relevant laws that are present under the Guardian and Ward Act, 1890; Hindu Minority and Guardianship Act, 1956 and other personal laws that are in place for Muslims and Christians which holds the welfare of the child as a predominant consideration. But, the point to be understood here is that apart from these laws, at times we also use Article 226 of the Indian Constitution to seek a writ of habeas corpus for child custody cases and the key issue that generally is been looked into in this regard is whether the writ of habeas corpus is even permissible in the matters of child custody. In this article, a critical analysis of the concept of child custody and the role of habeas corpus is examined using landmark case laws.


The purpose of writs is primarily for the enforcement of fundamental rights or any other purpose such as violation of any statutory duties. Looking at the writ of Habeas corpus, in particular, it is to be understood that it is a Latin term that means "you must have the body." Under this writ, it is through the court's order that the detainee is brought before the court and is thereafter determined whether or not the act was valid. Furthermore, the writ Habeas Corpus is found in articles 32 and 226 of the Indian constitution and would be issued only when there is an illegal detention, wrongful custody, or a child is in danger.

Having seen the writ of habeas corpus and child custody separately, it is important to understand the role of habeas corpus petition in child custody. In the matters of child custody, a writ of Habeas Corpus is generally used when a party claims the custody of the child who has been 'detained'. As the purpose of the writ itself we know, it is said to be a prerogative process for safeguarding the individual's liberty by ensuring immediate release from any kind of illegal or wrongful confinement. Thus, on the application of writ of habeas corpus in child custody matters, we need to understand that,child custody cases cannot be settled merely based on interpreting the laws; it is a problem that requires utmost care to resolve and moreover when it comes to child custody matters involving petition of Habeas corpus, a court is not bound by statutes, rigid rules of evidence or procedure, or precedents as well and solely depends on the facts of the case.

Apart from this, it is imperative to note here that, in child custody cases, the writ of Habeas Corpus also has the power to return a minor's custody to his guardian when it has been wrongly taken away. It has also been observed that Habeas corpus proceedings in child custody cases are sometimes being misused by the parties by bringing in new charges against one another in the course of the proceedings and the courts on this have rightly stated that such charges do not influence deciding parent’s custody rights. Further, instead of permitting habeas corpus in child custody cases, an inquiry into the best interests of the child should be conducted, and the best interests of the child should be considered rather than focusing on the tactics of the parties.Therefore, in various cases, Habeas Corpus in Child Custody has been held maintainable but there have also been instances where the petition was dismissed by the courts, which will all be addressed further below for a better understanding using cases.


As previously stated, while dealing with child custody, the welfare of the child is vital and holds great significance in the writ of habeas corpus. It is a well-settled fact that law on this aspect has evolved significantly over time, and is now widely accepted that a court can use its extraordinary writ power to protect a child's best interests. Hence, in various cases that would be discussed below it is seen that if the child is in the custody of another parent, a writ of habeas corpus is held maintainable.

In the case of Sayed Saleemuddin v. Dr. Rukhsana, (2001), the object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child was considered, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the main concern for the Court would be to determine whether the custody of the child is unlawful or illegal and thereafter decide the custody if required to be changed.

The Hon’ble Supreme Court in the case of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019), where the question of the maintainability of a habeas corpus petition for custody of a minor under Article 226 of the Indian Constitution was examined, held that the petition would be maintainable where detention by parents or others is found to be illegal and without the authority of law, the extraordinary remedy provided through a writ of habeas corpus can be used in exceptional cases where the actual remedy is considered to be ineffective. The exercise of extraordinary jurisdiction for the issuing of a writ of habeas corpus would be considered if the petitioner proves a prima facie case that the detention is unconstitutional and would therefore be entitled to the writ as a matter of right if the same was proved. It was further stated that the court's role in evaluating matters of minor custody in a writ of habeas corpus petition would have to be based on the principle of parens patriae jurisdiction, with the child's well being being the most important.

The law has evolved significantly over time and is widely accepted that the Courts can exercise its extraordinary power that is given through the writs in the best interests of the child. Apart from the above-mentioned case of Tejaswini Gaud, the cases like Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors (1987), Nithya Anand Raghavan vs. State & Anr (2017), and Lahari Sakhamuri vs. Sobhan Kodali (2019), have addressed this issue as well and held the writ of habeas corpus maintainable.

Further, the two other important case laws in the recent times that need to be known are firstly the case of Sushil Kumar Tiwari v. State of I.P (2021),in which it was held that the exercise of writ jurisdiction, in the custody of a minor may only be directed to be taken away from the mother and given to any other person, including the child's father in an exceptional situation, and on this note, the Court did not exercise its extraordinary power.

Likewise, in the case of Gaurav Raj Jain vs. the State of Karnataka (2022)the brief facts of the case are, the couple's child was delivered early, and as a result, they had to go to several hospitals for treatment. Later, the wife had taken the child away and does not let the father meet the baby even after multiple requests. The petitioner then filed the writ of habeas corpus on being aggrieved and contended that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 provide that the child's wellbeing must take precedence hence, the wife's statement that the child is in safe custody is an inadequate proof while the respondents argued that the child lives with her biological mother and that the writ of habeas corpus under Article 226 is not maintainable and is being misused by the petitioner. The Karnataka High Court observed that the child was in the safe custody of her mother and that if the father had been concerned about her safety, he might have used the provisions of the personal laws that are present to obtain the custody of the child. Further, the court was in favor of the respondent and held that the petitioner was abusing the provisions of Article 226 of the Constitution and a fine of Rs.50,000 was imposed and the case was dismissed.


To sum it up, in simple words habeas corpus is a legal remedy that allows a person to report an unlawful detention to a court and asks the court to order the person's custodian, to bring the person to court to determine if the custody is lawful or not. Further, referring to the cases discussed above on the role of writ of habeas corpus in child custody we can come to a conclusion that there is no doubt about the maintainability of a writ of habeas corpus for the purpose of child custody but the most important point to note is that the welfare of the child is the only thing that matters in any proceedings, and if the father or the mother could prove that the welfare of the child is in the best interests of the child under their custody, they can bring a petition before the Hon’ble court for a writ of habeas corpus under Article 226 or 32 of the Constitution and it is at the discretion of the court to decide on the same based on the facts of each case because as we have seen there are cases were the writ is been held maintainable and have been dismissed as well.

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