Habeas Corpus Plea Cannot Be Maintained For Minor's Custody Between Parents: Himachal Pradesh High Court
The Himachal Pradesh High Court has declined to entertain a habeas corpus petition filed by a father seeking production and custody of his minor daughter, holding that in custody disputes between parents, the appropriate remedy lies before the competent Guardian Court.
While dismissing a habeas corpus petition filed by a father seeking production and custody of his minor daughter, Chief Justice G.S. Sandhawalia and Justice Bipin C. Negi clarified that once the specific whereabouts of the minor are known, the appropriate court having jurisdiction over that place can be approached for relief.
The petitioner-father sought a writ of habeas corpus for the production of his minor daughter, Ms. Yashika, alleging that Respondent No. 3 — the child's mother — had taken her away. He also prayed for immediate custody of the minor child in furtherance of her welfare and to prevent alleged psychological, emotional and educational harm.
Further, the petitioner sought directions to restore and ensure the uninterrupted continuation of the child's education at her previous school so as to safeguard her academic year.
The marriage between the parties was solemnised on 25.02.2012 and registered on 13.09.2021. The minor child was born on 06.07.2017 in District Kangra near Dharamshala. The couple had resided at various places including Chandigarh, Mumbai, Bengaluru and later Bangkok, Thailand, where the petitioner continues to reside.
As per the plea, the mother travelled to India with the minor on 10.10.2025. After returning to Bangkok post-Diwali, she was hospitalised from 25.11.2025 to 26.11.2025, during which her brother travelled to Bangkok.
The petitioner alleged that Respondent No. 3 left Bangkok on 13.12.2025. Upon returning to the residence on 15.12.2025, he found that the child's belongings had been removed. Despite repeated attempts to contact her, including a conference call on 29.12.2025 involving family members, he allegedly received no cooperation. He was later informed by the respondent's father that she had reached Dharamshala.
The matter was listed before the Vacation Judge, who directed the petitioner to justify the maintainability of the writ petition.
The Bench referred to its earlier ruling in Saurav Rattan v. State of Himachal Pradesh & others (Cr.W.P. No. 11 of 2023, decided on 09.05.2025), wherein it had held that in disputes between parents, the appropriate remedy lies before the Guardian Court, which can adjudicate custody based on evidence.
These decisions reiterate that habeas corpus is an extraordinary remedy and ordinarily not invoked in custody disputes between parents when an efficacious alternative remedy exists.
Significantly, the Court observed that the petitioner had specifically averred that the mother and the minor child were residing in Dharamshala. In such circumstances, it could not be contended that the whereabouts of the minor were unknown.
The Court held that once the location of the detenue is known, the court within whose territorial jurisdiction the detenue resides would have the jurisdiction to entertain the habeas corpus plea.
It further observed that if the petitioner approaches the competent court having jurisdiction over the place where the child is residing, the court would be sensitive to the issue and ensure expeditious consideration.
Observing that "the child was relocated from the foreign country, the father is abroad and the present petition has also been filed wherein the affidavit has been attested at Pune, we are of the considered opinion that if such a petition is preferred before a Court of competent jurisdiction, the Court will be sensitive to the said issue and it will ensure that the matter is taken up at the earliest, on filing of the petition which may be preferred before the said Court," the plea was dismissed.
Title: Himanshu Dilip Kulkarni v. State of HP & Ors