Habeas Corpus Plea Seeking Custody Not Barred By Guardians & Wards Act, Writ Can Be Invoked In Child's Best Interest: Allahabad High Court

The Allahabad High Court quashed a single judge's order which had rejected a mother's habeas corpus petition seeking custody of her child from the father, observing that her plea could not have been dismissed on the ground that there was remedy available under Guardians and Wards Act. In doing so the court said that the writ court can invoke its extra-ordinary jurisdiction if it is in the best interest of the child. For context, the mother had approached the single judge in a habeas corpus petition, claiming that her 20-month child had been "forcibly taken away" by the father despite an order dated 10.09.2025 passed by the Child Welfare Committee, wherein the father was directed to handover the child's custody to the mother and he had not done so. The single judge had dismissed the mother's petition and said that while the writ can be invoked to restore the custody of a minor to their lawful guardian if they have been wrongfully deprived of it; it however said that no evidence was presented to establish that the minor's custody with the father was illegal or improper. "As regards the issue of custodial rights, it is open to the parties to approach the appropriate forum for the determination of such rights in accordance with the law," the single judge had said. With respect to the single judge's order a division bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra relied on the decision of the Supreme Court in Yashita Sahu Vs. State of Rajasthan and others (2020) wherein in had been held, “it is too late in the day to urge that a writ of habeas is not maintainable if the child is in the custody of another parent and the court can invoke its extraordinary writ jurisdiction for the best interest of the child. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child". The Supreme Court in this case had rejected the mother's contention that the father's habeas corpus writ petition before the High Court of Rajasthan was not maintainable.The high court thus said:"We find that the claim of the appellant No. 1 to get custody of her minor son, who is now aged about 20 months, has not been considered by the writ court on merits and the opinion formed by the learned Single Judge is that availability of remedy under Guardians and Wards Act, 1890, renders the petition for Habeas Corpus either not maintainable or the writ court as not an appropriate forum...There is no need to refer judgments on the settled proposition of law that in custody matters, it is only the welfare of the child that is of paramount consideration and once we have arrived at a conclusion that writ petition could not be dismissed as not maintainable or the forum of the writ court as not the appropriate one, the matter has to be considered by the writ court on merits where the parties would have their full say". The division bench had on 02.02.2026 granted time to the Standing Counsel for the State to obtain instructions as to why the directions of the CWC had not been complied with.In the next hearing on 25.02.2026 the instructions indicating that the SHO Haldi, Ballia gave a report to the Superintendent of Police, Ballia regarding non-compliance based on which, the SP Balia wrote a communication to SP Jaunpur requiring steps to be taken. The high court had then noted, "It is surprising that despite the orders passed by this Court, the officers are busy in writing letters to one another and the child, contrary to the order passed by the Child Welfare Committee, is at Police Lines, Jaunpur". In its next order dated 11.03.2026, the court had taken note of reports by SSP Jaunpur and SHO, Police Station Haldi, Ballia and had said:"Both the reports reinforce the observations/opinion of the Court that the officers of respondent no. 6, Police Constable, are providing full protection to the said respondent no. 6(father) in violating the directions of C.W.C., which conduct of the officers cannot be appreciated and appropriate orders in this regard would be passed while dealing with the main matter". On 25.03.2026 the counsel appearing for the father submitted that the father has challenged the CWC's order and that appeal is pending. The counsel had expressed his concern about the custody of minor child and made a statement that he would try to convince his client to act in the interest of the family.During the hearing on 03.04.2026 the father's counsel said that the court Court may explore possibility of amicable settlement of the matrimonial discord between the parties through process of mediation and conciliation so that they may sit together and explore terms of settlement. He also submitted that his client is inclined to divorce the mother though no such proceedings have yet been initiated.Setting aside the order of the Single Judge, the division bench restored the mother's habeas corpus...

Habeas Corpus Plea Seeking Custody Not Barred By Guardians & Wards Act, Writ Can Be Invoked In Child's Best Interest: Allahabad High Court

Upasna Agrawal

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