Father Forcibly Taking Custody Of Child Not 'Illegal Detention' Unless It Is In Violation Of Court Order: Allahabad High Court
The Allahabad High Court has observed that a father, being a natural guardian of a Hindu Minor, cannot be said to 'illegally detain' a child even if he forcibly takes the custody from the mother, unless such an act is in violation of an order of a Court.
A bench of Justice Anil Kumar-X thus dismissed the mother's habeas corpus petition as non-maintainable. The petitioner had claimed that her estranged husband (respondent) forcibly took away their two minor children at gunpoint in 2022 and had kept them under 'illegal detention' since then.
It was further submitted that several applications were filed before different forums seeking custody of the minors; however, no effective action had been taken by the authorities.
The petitioner's counsel also relied upon the High Court's recent judgment in Rinku Ram @ Rinku Devi and another v. State of U.P. and 7 others 2026 LiveLaw (AB) 192 to argue that the Court can invoke its extraordinary jurisdiction in the best interest of the child even in cases where a child is in the custody of another parent.
On the other hand, the AGA and the counsel for the respondent submitted that both minors have been residing with the father-respondent, no. 4, since 2022, and the petitioner, before moving to the HC, had not availed of any remedy under the Guardian and Wards Act to date.
It was also argued that the custody disputes between parents ordinarily cannot be adjudicated in a writ petition under Article 226 of the Constitution of India.
Lastly, it was contended that the Judgment in Rinku Ram (supra) was distinguishable on facts, as in that case, the custody of the minor was forcibly taken in violation of an order passed by the Child Welfare Committee, which had directed that custody be handed over to the mother. However, in the present case, no such circumstance existed.
Against the backdrop of these arguments, the bench, while relying on the Supreme Court's judgment in Tejaswini Gaud and others vs Shekhar Jagdish Prasad Tewari and others, observed that habeas corpus in child custody matters can be invoked only when the custody of a child is illegal or without lawful authority.
The Court further perused Section 361 of IPC, which criminalises taking a minor "out of the keeping of the lawful guardian". It noted that an offence would be attracted only when the minor is removed from the custody of a person who is legally recognized as the guardian, and the person taking the minor is not himself a lawful guardian.
The Court also referred to Section 6 of the Hindu Minority and Guardianship Act and Section 4(2) of the Guardians and Wards Act, to note that the law recognizes the father as a natural guardian.
In view of this, the bench held that a mere allegation that the father has forcibly taken the minors from the custody of the mother, even if accepted on its face value, would not lead to the conclusion that the minors are in illegal detention.
"The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract any criminality. Such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition," the bench observed.
The Court noted that, in the present case, the minors (over 5 years of age) have been residing with the father since 2022 and noextraordinary circumstance had been brought on record to indicate that their custody is illegal or detrimental so as to warrant interference by this Court in exercise of its writ jurisdiction.
The Court added that the remedy of habeas corpus cannot be permitted to be used as a substitute for the remedies available under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890.
Accordingly, the petition was dismissed as non-maintainable.
Case Title: Anjali Devi And 2 Other vs. State Of U.P. And 3 Other 2026 LiveLaw (AB) 225
Case Citation: 2026 LiveLaw (AB) 225