The writ was never meant to settle who gets Christmas with the kids. Habeas corpus was built to answer one question: has the State, or anyone else, confined a person without lawful authority? That is the whole of it. Article 32 and Article 226 preserve that function precisely because it stays narrow, a summary remedy for a stark wrong, not a mechanism for weighing competing claims of care. So looking at who actually is being named as respondent in habeas corpus petitions before High Courts today. Rarely the State. A parent, more often. A spouse. A relative. The child is in one parent's care, or an adult is living with in-laws, or a wife has simply gone back to her parental home, and someone has decided to call that detention. Whether individual benches got individual cases right is not really the interesting question here. The interesting question is whether the writ itself has quietly grown a second, unintended jurisdiction: a faster track for disputes the law already assigns somewhere else.

The Test Everyone Cites, and the Exception Everyone Also Cites

Every High Court that has ruled on this in the past year starts from the same place. Habeas corpus lies only where custody is shown to be illegal or without authority of law, per the Supreme Court's articulation in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), reaffirmed in Vivek Kumar Chaturvedi v. State of U.P. (2025). The Allahabad High Court applied it in Smt Deeksha & Anr. v. State of U.P. (2026) to hold that custody placed with a child by a Child Welfare Committee cannot be reopened through habeas corpus, since the CWC's order is neither illegal nor without authority (following the Full Bench ratio in Rachna v. State of U.P.). Orissa reached the same conclusion in Shashikanta Majhi v. State of Odisha (2026), dismissing a father's petition on 23 February 2026 on the ground that once a case turns on comparing two lawful custodians rather than identifying an illegal one, the writ court has no business "usurping" the civil court's welfare inquiry; the parties belong under the Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956. Punjab and Haryana went further in Neelam v. State of Haryana (2026), (per Justice Rupinderjit Chahal). That order didn't just apply the test, it named the behavior, describing a growing pattern of "disgruntled parents" invoking habeas corpus to bypass guardianship proceedings entirely. That's not the language of a routine dismissal. It reads like a warning shot aimed squarely at the family bar.

Andhra Pradesh made the institutional version of the same point in Kondrakunta Chandrakanth v. State of A.P., 2026 LiveLaw (AP) 129: a writ court simply has no mechanism for the evidentiary, welfare-focused inquiry that guardianship proceedings exist to do, so pending Guardians and Wards Act proceedings should ordinarily be left alone to run their course.

If the test stopped there, this would be a short article. It doesn't. In a separate appeal (Smt. Rinku Ram @ Rinku Devi v. State of U.P.), a different Allahabad bench set aside a single judge's dismissal of a habeas petition, holding that the mere availability of a Guardians and Wards Act remedy cannot by itself defeat a habeas petition where the child is of tender age and welfare is urgent. Which means the very same court that treats illegality as the threshold has also cut a tender-age exception wide enough to swallow that threshold whole. Urgency is doing the actual work here, not illegality, whatever the judgments say they're applying.

Delhi's Two Faces

Put two Delhi cases side by side and the inconsistency stops being theoretical. In Somya Goel v. State (NCT of Delhi) decided 10 June 2026, a division bench refused to entertain a mother's habeas petition for her daughter, then in Singapore, because she had concealed parallel Singapore custody proceedings. Concealment killed the petition, full stop. A near-identical Canada matter, Karan Chopra v. State decided 2 July 2026, went the opposite way: the bench found the mother had removed the child from Canada without the father's consent, in breach of a Canadian custody order, and used the writ to direct the child's return. Same shape of case, really. A lawful custodian abroad, an alleged breach of consent, facts in dispute on both sides, exactly the kind of complexity the doctrine insists habeas corpus cannot untangle. One petition got dismissed for want of jurisdiction. The other got decided on the merits. Neither outcome turned on illegality of detention in any strict sense; both turned on how the bench happened to read the equities in front of it. Name that plainly, because it's the real doctrinal problem: "illegal detention" is quietly being read down into something closer to "custody a court finds undesirable," and which label a given case ends up with depends heavily on which bench draws it.

The transnational cases have produced something else too, an institutional workaround rather than a doctrinal one. Facing a father's plea to recover a child settled in the United States in Jasjit Singh Mangat v. Union of India (2026), the Delhi High Court declined the writ but sent the matter to the NCPCR's Mediation Cell instead, bringing in a child psychologist, a NALSA representative, and the relevant foreign mission. A similar move followed weeks later in another transnational dispute. Courts, in other words, are building a forum by administrative direction because neither habeas corpus nor a slow guardianship suit fits a case where the child has already been abroad for years.

Why the Writ Keeps Winning Anyway

None of this doctrinal murkiness discourages filing, and it shouldn't be surprising why. Habeas corpus offers four things a Family Court simply cannot: direct access to a High Court that skips the trial hierarchy, interim urgency a civil suit doesn't provide, real speed compared to Guardians and Wards Act proceedings that can drag on for years, and the sheer psychological weight of a production order, which on its own often forces a private settlement no matter how the petition would eventually be decided. Petitioners are not necessarily getting the law wrong. Many of them are calculating, quite correctly, that even a habeas petition they go on to lose still moves the other side's bargaining position faster than a guardianship suit they'd eventually win.

Where the Line Should Sit

Read together, these cases point toward a workable line. Habeas corpus should stay available where there's an actual, identifiable unlawful restraint, where the State has failed to trace a genuinely missing person, where a minor is prima facie in illegal custody in the narrow sense of contrary to a specific order or without any custodial authority at all, and where an adult is being stopped from exercising a free choice, a marriage, say, or a decision to leave a household. It should ordinarily be refused for routine disputes between two lawful custodians, for matrimonial disagreements dressed up as detention, and for petitions filed mainly to buy the urgency or leverage a Family Court wouldn't extend.

The more useful fix, though, might be procedural rather than doctrinal. A dismissed habeas petition right now sends the petitioner back to square one, re-file from scratch under the Guardians and Wards Act, lose weeks or months doing it. High Courts could instead do what the NCPCR-referral orders already gesture toward in embryonic form: convert or transfer the petition straight to the right forum, interim protective directions intact. That removes the tactical payoff of misusing the writ's urgency without punishing someone who genuinely knocked on the wrong door in good faith.

The pattern across Andhra Pradesh, Allahabad, Orissa, Punjab and Haryana, and Delhi isn't that courts are being fooled into hearing family disputes. It's that the line the Supreme Court drew in Tejaswini Gaud is being applied with real inconsistency at the edges, especially where a child's age, a foreign order, or concealment of facts enters the picture. What this area needs isn't another case note restating that the writ is not a substitute for guardianship, we have enough of those already. It needs a Full Bench or Supreme Court ruling on what "prima facie illegal custody" actually means in cross-border and tender-age cases. Until that happens, the inconsistency isn't a bug in the system. It is, functionally, the system.

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