Habeas corpus cannot resolve child-custody disputes properly triable before the Family Court.

The petitioner filed a writ petition under Article 226 of the Constitution read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking a writ of habeas corpus for production of his minor son, aged approximately eight years, alleged to be in the illegal custody of the petitioner’s wife and others.

The petitioner and respondent no. 3 married on 22 November 2015, and their son was born on 2 August 2018.

The petitioner admitted that the child had remained in the mother’s custody since birth and that the parties had been living separately since 2016, with the mother and child residing in Haridwar, Uttarakhand.

He alleged that he had not seen the child for approximately two years and had made complaints to the police seeking assistance in meeting him.

The petitioner had also initiated matrimonial and visitation-related proceedings before the Family Court at Haridwar.

1. Whether a writ of habeas corpus under Article 226 could be issued for production of a minor child who was admittedly residing with his mother, an ordinary resident of Uttarakhand, particularly when custody and visitation proceedings were pending before the competent Family Court.

2. Whether the petitioner could invoke the writ jurisdiction of the Delhi High Court to determine a family custody/visitation dispute notwithstanding the availability of a specialised forum and the pendency of proceedings before the Family Court at Haridwar.

The Court applied Article 226 of the Constitution and Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 as the legal bases for habeas corpus jurisdiction.

It held that the writ of habeas corpus is not an appropriate mechanism for adjudicating ordinary matrimonial, child-custody, or visitation disputes where the child is in the custody of a parent and the dispute can be determined by a competent specialised court.

The Court also relied on the existence of the Family Courts established under the Family Courts Act, 1984, observing that such family matters should ordinarily be pursued before that specialised forum.

Although the petitioner relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, AIR 2019 SC 2318; Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67; and Gautam Kumar Das v. NCT of Delhi, 2024 INSC 610, the Court did not find those authorities applicable to justify issuance of habeas corpus on the facts presented.

The Court treated the petitioner’s own admissions as determinative: the child had ordinarily resided in Uttarakhand for several years and had remained in the custody of his mother, while the petitioner had already pursued legal proceedings concerning visitation before the Family Court at Haridwar.

In these circumstances, the custody was not shown to be prima facie illegal so as to warrant habeas corpus.

The real dispute concerned matrimonial relations, custody, and visitation, matters requiring factual adjudication by the competent Family Court rather than summary determination in writ jurisdiction.

The Court therefore considered the petition an abuse of process intended to create multiplicity of litigation, notwithstanding the petitioner’s reliance on Supreme Court decisions concerning habeas corpus in child-custody matters.

The pending application was also disposed of.

The Court reserved liberty to the petitioner to approach the court of competent jurisdiction in an appropriate proceeding.