Father As Natural Guardian Cannot Be Accused Of Illegal Custody Except When In Violation Of Court Order: Allahabad HC Dismisses Habeas Corpus Plea
The petitioner alleged that the father had forcibly taken away the minors in June 2022 and retained them in illegal custody.
Justice Anil Kumar-X, Allahabad High Court
The Allahabad High Court held that held that a habeas corpus petition is ordinarily not maintainable in child custody disputes between parents unless the custody is clearly illegal or without authority of law.
The petitioner sought a direction to produce petitioner no. 1 (corpus) before the Court and to set her at liberty, alleging that respondent no. 4 (father) had forcibly taken away the minors in June 2022 and retained them in illegal custody.
A Bench of Justice Anil Kumar X held, “The father, being a natural guardian, cannot be said to have taken the minors out of lawful guardianship so as to attract any criminality. Such forcibly taking away will constitute an offence only if it has been done in violation of a legal order or legal prohibition.”
Advocate Pradeep Kumar Singh appeared for the Petitioner and Advocate Amit Kumar Chaudhary appeared for the Respondent.
According to the petitioners, the marriage between petitioner no. 1 and respondent no. 4 was solemnized in 2010, and two children were born out of the wedlock. It was alleged that due to strained relations, the mother was driven out of the matrimonial home, and thereafter the father took custody of the minors at gunpoint. The petitioners argued that habeas corpus is maintainable even against a parent if it serves the best interest of the child.
Opposing the plea, the State and the respondent contended that the children have been residing with the father since 2022 and that the petitioner had not pursued remedies under the Guardians and Wards Act. It was argued that custody disputes between parents should be adjudicated by a competent civil court and not through a writ petition.
The Court examined the legal position and referred to the Supreme Court ruling in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, emphasizing that habeas corpus is an extraordinary remedy to be used only where detention is illegal or without authority of law.
It observed that habeas corpus proceedings is not to justify or examine the legality of the custody but is a discretionary remedy, and in child custody matters, it is maintainable only where detention is proved to be illegal. The Court further noted that ordinary remedies lie under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.
Addressing the allegation of forcible removal, the Court held that a “bald allegation” by one parent is insufficient to invoke habeas corpus jurisdiction. It clarified that under Section 6 of the Hindu Minority and Guardianship Act, the father is a natural guardian, and therefore, custody with him cannot be presumed illegal. The Court also referred to Shri Ashok Kumar Seth v. State of Orissa, stating that a father cannot be held liable for kidnapping his own minor child unless there is violation of a court order.
The bench concluded that no exceptional or extraordinary circumstances were shown to establish illegal detention or harm to the welfare of the children. It held that custody disputes require detailed adjudication, which cannot be undertaken in summary writ proceedings.
“The remedy of habeas corpus cannot be permitted to be used as a substitute for the remedies available under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890,” the Court stated.
Accordingly, the petition was dismissed.
Cause Title: Anjali Devi & Ors. v. State of U.P. & Ors., [2026:AHC:79268]
Appearance:
Petitioners: Advocates Pradeep Kumar Singh, Rahul Shukla
Respondents: Advocate Amit Kumar Chaudhary