Writ Of Habeas Corpus For Minor Child’s Custody Is Maintainable; But Can’t Be Used Only For Mere Enforcement Of Foreign Court’s Direction: Madhya Pradesh High Court
The Madhya Pradesh High Court was considering a writ of habeas corpus filed by the petitioner father seeking the custody of his minor child.
Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi, Madhya Pradesh High Court
While considering a petition filed by a father seeking custody of his child, the Madhya Pradesh High Court has held that the writ of Habeas Corpus in the matter of custody of a child is maintainable and such a writ cannot be used only for the mere enforcement of the direction given by a foreign Court.
The High Court was considering a writ of habeas corpus filed by the petitioner seeking the custody of a minor in compliance with the order passed by a foreign Court.
The Division Bench of Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi held, “A writ of Habeas Corpus cannot be used only for mere enforcement of the direction given by foreign Court and same is one of the facts to be considered and the extra ordinary power of writ of Habeas Corpus can be availed in exceptional cases where the detention of a child by parent or others is found to be illegal and without any authority of law where the original remedy provided by the law is either unavailable or ineffective.”
Advocate Prabhijeet Jauhar represented the Petitioner, while Senior Advocate A.S.Garg represented the Respondent.
Factual Background
The petitioner had filed the writ petition for issuance of a writ in the nature of Habeas Corpus or any other writ or order or direction, against the fourth Respondent, for the custody of the fifth Respondent, on account of the fact that respondent child was unlawfully and wrongfully removed from the custody of the Petitioner, by fraud on false and frivolous grounds and to further repatriate the child to Canada in accordance with the orders of the Canadian Family Court as her entire upbringing had been in North America. The petitioner's father claimed that he had made several attempts to save the family, but the fourth respondent was depriving the petitioner of his legal right to stay with his daughter. It was in such circumstances that the petitioner approached the High Court.
Reasoning
The Bench rejected the objection of the respondents that the present petition was not maintainable in view of the judgment passed in the case of Vishnu Gupta Vs. State of MP & Ors. (2025) as the issue of maintainability of the Habeas Corpus in respect of custody of a minor child was not decided by the coordinate bench in Vishnu Gupta (supra).
The Bench reaffirmed the view that a writ of Habeas Corpus in the matter of custody of a minor child is maintainable. The Bench also made it clear that a writ of Habeas Corpus cannot be used only for the mere enforcement of the direction given by a foreign Court.
“The Court, while passing the writ of Habeas Corpus, will examine whether the welfare of the child requires that the present custody should be changed and child should be left in the care and custody of somebody else”, it stated.
The Bench listed the matter for October 10, 2025.“The paramount consideration while exercising the writ of Habeas corpus for the change of custody of a child will be the welfare of the child”, it concluded.
Cause Title: A v. The State of Madhya Pradesh (Case No.: WP-22416-2024)
Appearance
Petitioner: Advocates Prabhijeet Jauhar, Firoza Daruwala, Rosemary Raju
Respondent: Senior Advocate A.S.Garg, Advocates Raunak Choukse, Archit Jaykar, Government Advocate Bhuwan Gautam