Habeas Corpus Not Proper Remedy When Child Custody Is Not Illegal; Parties Must Approach Civil Court For Welfare Determination: Orissa HC

It further observed that upon perceiving such complexities, the writ court should not usurp the powers of the civil court exercising parens patriae jurisdiction. Instead, the proper course is to relegate the parties to seek appropriate relief under the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890, where evidence can be led and a detailed welfare assessment undertaken.

The Division Bench clarified that although habeas corpus petitions are maintainable in child custody matters, the writ jurisdiction is summary in nature and not suited for resolving complex questions relating to welfare, guardianship rights, and long-term upbringing.

Chief Justice Harish Tandon and Justice M.S. Raman observed, “The moment the custody does not appear to be illegal and/or unlawful and the question which begging an answer is, whether the welfare of the child lies in uprooting him/her from the known custody to the custody of another person, it would be proper for the Court to relegate the parties to approach the Civil Courts. Once the complexities is perceived, the writ Court should not usurp the powers of the Civil Court to decide and proper course to be adopted in this regard is to remit the parties to approach the Civil Court either under the Hindu Minority and Guardianship Act, 1956 or under the Guardians and Wards Act, 1890, as the case may be”.

“The moment the Court found that the custody of a child with the person is unlawful and/or illegal per se, there is no fetter on the part of the writ Court to exercise such extraordinary powers in directing the custody of the child to be given to a lawful person. The entertainability of the writ petition in the nature of habeas corpus cannot be squeezed into a straightjacket formula nor to be decided on the basis of Euclid’s Theorem but depends upon the facts of each case; above all, the welfare of the child should be the paramount consideration”, the Bench further observed.

Accordingly, holding that the case did not disclose unlawful custody warranting interference, the Court declined to grant relief in habeas corpus and left it open to the aggrieved party to pursue remedies before the competent civil forum.

Advocate Jyoti Prakash Patra and Aishwarya Dash, Additional Standing Counsel appeared for the respondent.

In the matter, the dispute had earlier reached the Child Welfare Committee, Balasore, which directed production of the child.

The matter then reached the Supreme Court in a Special Leave Petition, where the Court directed that the child be produced before the CWC for interaction but restrained the Committee from passing any order regarding custody. Subsequently, the child continued to remain with the maternal aunt.

The father had then invoked the extraordinary jurisdiction of the High Court by filing a habeas corpus petition, contending that as the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, he was entitled to custody and that retention by any other person was illegal.

However, the Court had noted that the minor child's mother had passed away, and since then the child was residing with the maternal aunt pursuant to proceedings before the Child Welfare Committee, a competent statutory authority.

Since the custody was neither obtained by force nor retained in defiance of any lawful order, it could not be characterised as illegal or unlawful detention, the Bench noted. 

Cause Title: Shashikanta Majhi v. State of Odisha and others WPCRL No.10 of 2026

Appearances:

Petitioner: Jyoti Prakash Patra, Advocate.

Respondent: Aishwarya Dash, Additional Standing Counsel, Sukanta Kumar Dalai, Advocate.

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