Habeas corpus cannot disturb a mother’s custody absent unlawful detention.

The petitioner-father sought a writ of habeas corpus and custody of his daughter, aged about two years and three months, who was living with her mother, respondent no. 6. He alleged that the mother had removed the child from the matrimonial home without his consent and denied him access. The mother disputed his account and alleged, among other matters, that the child’s welfare and safety required her to remain with her.

The petitioner had made police representations and filed a private complaint under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023; the Magistrate indicated that custody should be pursued before the competent forum. The petitioner then brought this habeas corpus petition.

Whether the child’s custody with her mother could be treated as unlawful so as to warrant habeas corpus relief.

Whether the High Court should exercise its extraordinary jurisdiction to determine or alter custody where the dispute involved contested facts requiring a detailed inquiry.

Under Article 226, habeas corpus is an extraordinary remedy in child-custody matters and is available where a minor’s detention is illegal or without authority of law; the child’s welfare remains paramount.

Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14, supports the principle that a child’s custody with the mother is not unlawful merely because the father seeks custody, and that a thorough welfare inquiry may require ordinary proceedings.

Tejaswini Goud v. Shekhar Jagdishprasad Tiwari, (2019) 7 SCC 42, states that ordinary custody remedies lie under the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890, and that a writ court may direct parties to the competent civil court where detailed fact-finding is needed.

The Court also referred to Kanika Goel v. State of Delhi, (2018) 9 SCC 578, on examining at the threshold whether the child is in lawful custody.

The child was residing with her mother, and the Court held that this custody could not, on the material before it, be characterised as illegal.

The parents’ competing accounts—including the mother’s allegations concerning the petitioner’s conduct and the child’s welfare—raised disputed questions requiring evidence and a fuller inquiry. Applying the principles in Sarita Sharma, Tejaswini Goud and Kanika Goel, the Court concluded that the summary habeas corpus process was not an appropriate forum to resolve the custody dispute or determine the parties’ rival claims.

It left the parties free to pursue remedies before the competent forum, directing that any such application be decided independently and clarifying that it had expressed no opinion on permanent or interim custody.