The Andhra Pradesh High Court has dismissed a father's plea seeking custody of his four-year-old son from the mother through a habeas corpus petition.

In doing so, the Court held that the child's custody with his biological mother could not be considered illegal and found no exceptional circumstances warranting a change of custody.

The Division Bench comprising Justice Ravi Nath Tilhari and Justice Subhendu Samanta observed,

“In the present case, the extraordinary and exceptional circumstances could not be brought to our notice so as to justify the writ jurisdiction by way of writ of habeas corpus, as prayed, to change the custody of the minor son aged about four years who is with the mother. The petitioner will have the alternative remedy as may be open under law for custody of the minor.”

The dispute arose after the petitioner-father alleged that his wife had left the matrimonial home with their son, born on February 14, 2022, without his consent or knowledge. He also alleged that his wife's behaviour had changed on account of his disability, as he suffers from 40% locomotor disability.

The father subsequently issued a legal notice calling upon his wife to return to the matrimonial home with the child. As she neither replied to the notice nor complied with it, he approached the High Court under Article 226 of the Constitution, seeking a direction to the official respondents to produce the minor child and hand over his custody to him as the father and natural guardian.

The Bench noted that the child was in the custody of his mother and held that such custody could not be said to be illegal.

The Court explained that a writ of habeas corpus is an extraordinary and discretionary remedy. In matters concerning the custody of a minor, the High Court must examine whether the child is in lawful or unlawful custody. Where the child is in the custody of the biological mother, such custody may be presumed to be lawful, and a change of custody through writ jurisdiction would be justified only in exceptional circumstances.

The Bench further observed that the decision in child custody matters must depend on the facts and circumstances of each case, with the welfare of the minor being the paramount consideration. The rights of the parents cannot override the welfare of the child.

Applying these principles, the Court held that the father had failed to establish exceptional circumstances warranting a change of custody through a habeas corpus petition and could pursue other remedies available under law.

On his allegation that the mother was not permitting him to meet the child, the Bench observed that he could seek appropriate relief under law.

Accordingly, the High Court dismissed the writ petition, leaving it open to the father to pursue remedies available under law.

Counsel for the Petitioner: Sri A.S.L.N. Raju

Counsel for the Respondents: Sri J. Krishna Praneeth, Assistant Government Pleader