Pendency Of Guardian And Wards Act Proceedings No Absolute Bar To Grant Of Child Custody By Writ Court: Allahabad High Court

The Allahabad High Court has held that the pendency of proceedings under the Guardian and Wards Act, 1890 is not an absolute bar to a habeas corpus petition seeking custody of a minor child.

It held that each such case turns on the facts before the writ court, whose discretion under Article 226 of the Constitution of India plays a vital role.

The bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra held,

“Though it is true that remedy under the G & W Act may be relevant and have a bearing on the claim for custody raised through petitions of habeas corpus, there is no absolute proposition that every such matter where proceedings under the G & W Act are pending, the Court has to dismiss the habeas corpus writ petition on that ground. Each case depends upon the facts and circumstances which arise before the writ court and the position of law being settled to the effect that in such matters, discretion of the writ court under Article 226 of the Constitution of India plays a vital role.”

The child was born on 12.10.2020. His mother was diagnosed with a kidney ailment in the middle of 2022 and, as pleaded in the writ petition, her parents took her and the child away to Ghaziabad on the assurance that they would look after both. She died of kidney failure on 31.05.2023, when the child was about 2.5 years old.

In November 2025, the father filed a habeas corpus petition alleging that the child was in the illegal custody of the appellants, his Mausi and Mausa, since July 2023, and that their petition under Section 25 read with Section 10 of the Guardian and Wards Act, 1890, pending before the Family Court, Ghaziabad, was not maintainable. By order dated 30.09.2026, a Single Judge handed custody to the father and granted the appellants visitation rights. They filed the special appeal.

The appellants argued that the petition came more than two years after the child began living with them and did not say how their custody was unlawful, that they were financially better placed, that the father had called himself an HR Manager while his own pay slips showed him as a Senior Executive-Help Desk, and that he had left the child with his brother in Dhanbad after taking custody. For the father, it was argued that the pendency of the proceedings was no ground to deny relief.

The Court held that the delay in filing the writ petition was not fatal to the father's claim, as he was contesting the proceedings under the Act throughout. It noted that he was the natural guardian, was not out of work, and faced no criminal prosecution in connection with his wife's death. The bonding the child had developed with the appellants, it observed, was natural after more than three years with them.

Holding the appellants' defence to be quite weak, and that custody to the father could not be called an error unless the Family Court reached a definite conclusion on evidence, the Court declined to interfere with the Single Judge's discretion.

“In the facts and circumstances of the case, we are not inclined to interfere with the order impugned in this appeal otherwise it would also result in change of custody from father to Mausi and Mausa of the corpus so as to treat the corpus as an object by moving him from one place to another, which may disturb him in multiple ways.”

The special appeal was dismissed, with the observation that neither decision would prejudice the parties' rights and contentions before the Family Court, which would decide the pending proceedings on the material before it and in accordance with law.

Counsel for Appellant(s) :- Nipun Singh (Sr. Advocate), Naman Agarwal, Sumit Suri

Counsel for Respondent(s) :- C.S.C., Riyajuddin Ansari, Ms. Shama Khatoon