Habeas Corpus Plea Can't Be Used To Enforce Ex-Parte Custody Order Obtained Without Notice To Mother: Andhra Pradesh High Court
The Andhra Pradesh High Court has held that a writ of habeas corpus cannot be used to enforce an ex parte custody order, after noting that the custody decree had been obtained without notice to the mother after the father furnished his own address as the mother's address instead of disclosing her actual address.
The Court further held that where a statutory remedy for enforcement is available under the Guardians and Wards Act, 1890, the writ jurisdiction cannot be converted into that of an executing court.
A Division Bench of Justice Ravi Nath Tilhari and Justice Subhendu Samanta dismissed the father's habeas corpus petition seeking implementation of an ex parte custody order in his favour.
The Court observed:
“In the facts of the present case, the writ of Habeas Corpus deserves not to be issued based on the order dated 05.06.2025. That very order has been obtained by not furnishing correct address of the respondent No.4 resulting into an order of custody in favour of petitioner behind the back of the respondent No.4.
The basis of the writ petition is an ex parte order against respondent No.4. It is so evident from the order itself. The respondent No.4-mother has already applied for setting aside that order of custody and the application is pending. So, at this stage, the order of dated 05.06.2025 has not attained finality. From the material on record, we are of the considered view that not only the order of custody is an ex parte order but without notice to the respondent No.4.”
The case arose from a habeas corpus petition filed by the father seeking custody of his six-year-old son based on an order passed by the Family Court appointing him as guardian and directing the child's mother to hand over custody within 60 days.
He contended that once the Family Court passed the custody order, the mother's continued custody of the child became illegal, entitling him to seek restoration of custody through a writ of habeas corpus.
Opposing the petition, the mother submitted that the custody order had been obtained ex parte after the petitioner deliberately furnished an incorrect address, thereby depriving her of notice in the Family Court proceedings. She informed the High Court that applications to set aside the ex parte custody order and condone the delay in filing them were already pending before the Family Court. She further argued that Section 43 of the Guardians and Wards Act provides a statutory mechanism for enforcement of custody orders and, therefore, a writ of habeas corpus was not maintainable.
Examining the matter, the High Court reiterated that a writ of habeas corpus is an extraordinary and discretionary remedy and cannot be used merely to enforce a custody order.
On the facts, the Bench found prima facie that the petitioner had obtained both the ex parte divorce decree and the custody order by furnishing his own address as that of the mother.
The Court noted that although the petitioner himself had pleaded in the divorce proceedings that the mother had left the matrimonial home in 2022 and was residing at her parents' house, he neither disclosed her parental address nor the Bengaluru addresses later mentioned in his legal notice while instituting the Family Court proceedings.
Accordingly, the Court held that the custody order had been passed behind the mother's back without notice. Since her applications to set aside the ex parte order were pending, the custody order had not attained finality and could not form the basis for issuing a writ of habeas corpus. The Bench further held that Section 43 of the Guardians and Wards Act provides a statutory mechanism for enforcing custody orders in cases of disobedience and, therefore, rejected the petitioner's contention that habeas corpus was the only available remedy.
Accordingly, the High Court dismissed the writ petition.
Case Title: Ogirala Venkata Sai Sunil Manohar v. State of Andhra Pradesh & Ors.
Case No.: Writ Petition No. 36437 of 2025
Counsel for the Petitioner: Sri V. Ravindhar
Counsel for the Respondents: Sri J. Krishna Praneeth, Assistant Government Pleader, and Sri Narasimha Rao Gudiseva.