The Bombay High Court has clarified that a writ of habeas corpus cannot be invoked to circumvent pending custody proceedings before a Family Court, absent clear evidence of illegal detention. The judgment reinforces the principle that welfare of the child and adjudication by the specialized forum must prevail over constitutional remedies in domestic custody disputes.
Background & Facts
The Dispute
The petitioner, Shamik Haresh Hirani, is the father of a four-year-old minor child, 'H', born on 24.02.2021. The petitioner and respondent No.2, Richita Shamik Hirani, were married on 04.12.2017. The child resided with both parents at the matrimonial home in Vile Parle, Mumbai, until a breakdown in the marital relationship led to separation.
Key Facts
The child was enrolled at Veda Montessori in February 2023, near the petitioner’s residence.
On 24.03.2025, respondent No.2 left the matrimonial home without the child.
The child remained in the petitioner’s custody from 24.03.2025 to 23.04.2025.
On 23.04.2025, respondent No.2 returned to the matrimonial home after an argument.
On 24.04.2025, the child was temporarily taken to respondent No.2’s parental home for a birthday party and returned to the petitioner on 27.04.2025.
On 02.05.2025, respondent No.2, accompanied by her mother (respondent No.3), entered the petitioner’s residence using a fingerprint lock and took the child away.
The petitioner alleges this was a forcible and surreptitious removal, supported by CCTV footage (Annexure F).
Respondent No.2 claims she entered lawfully, as the child was vomiting and unwell, and took him to a doctor.
The petitioner filed a custody application before the 5th Family Court, Bandra, in July 2025 (Petition No. D-79 of 2025).
The petitioner filed the present writ petition on 20.01.2026.
Procedural History
04.12.2017: Marriage solemnized between petitioner and respondent No.2.
24.02.2021: Birth of minor child 'H'.
24.03.2025: Respondent No.2 leaves matrimonial home without child.
27.04.2025: Child returned to petitioner after birthday visit.
02.05.2025: Respondent No.2 takes child from petitioner’s residence.
20.07.2025: Petitioner files custody application before 5th Family Court, Bandra (D-79/2025).
20.01.2026: Petitioner files Writ Petition No. 371 of 2026 before Bombay High Court.
30.01.2026: Court refers matter to mediation; mediation fails.
25.03.2026: High Court directs Family Court to expedite interim custody hearing.
13.04.2026: Family Court orders both parties to file written arguments by 28.04.2026.
18.04.2026: Judgment reserved.
24.04.2026: Judgment pronounced.
The Parties' Positions
Petitioner’s Position: The child was in settled custody since birth. The removal on 02.05.2025 was unlawful, forcible, and without consent. The writ petition is maintainable under Yashita Sahu v. State of Rajasthan and Tejaswini Gaud v. Shekhar Tewari as it seeks to remedy illegal detention, not determine custody.
Respondent No.2’s Position: The child was never in exclusive custody of the petitioner. She entered the matrimonial home lawfully using a fingerprint lock. The child was unwell and she took him for medical care. The petitioner has had multiple access opportunities (13 - 19.05.2025). The Family Court is already adjudicating custody urgently.
Relief Sought
The petitioner seeks issuance of a writ of habeas corpus to produce the minor child before the Court and direct his return to the petitioner’s custody.
The Legal Issue
Can a writ of habeas corpus be maintained to challenge the custody of a minor child by a natural parent, where a custody application is already pending before the Family Court and no clear evidence of illegal detention is established?
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel relied on Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67 and Tejaswini Gaud v. Shekhar Tewari (2019) 7 SCC 42 to argue that habeas corpus is maintainable when a child is unlawfully removed from settled custody, even by a parent. She emphasized that the writ jurisdiction is inherent, constitutional, and operates as parens patriae. The removal on 02.05.2025 was not mere relocation but a forcible abduction, evidenced by CCTV footage and respondent’s own admission in para 29 of her affidavit. The pendency of Family Court proceedings does not bar constitutional remedies when illegality is alleged.
For the Respondent/State
Respondent’s counsel contended that habeas corpus is an extraordinary remedy, available only where ordinary remedies are ineffective. She relied on Jose Antonio Zalba Diez Del Corral v. State of West Bengal (2024) 12 SCC 419 and Varun Malhotra v. NCT of Delhi (MANU/DE/1682/2026) to argue that the child’s custody is lawful as the mother is a natural guardian. The entry into the matrimonial home was lawful, the child was unwell, and the Family Court had already been directed to hear the interim custody application urgently. The disputed facts - whether the removal was forcible or for medical care - cannot be resolved in a writ petition.
The Court's Analysis
The Court acknowledged the petitioner’s emotional distress and the gravity of the allegations. However, it emphasized that the writ jurisdiction under Article 226 is not a substitute for the specialized jurisdiction of the Family Court under the Guardians and Wards Act, 1890, or the Hindu Marriage Act, 1955. The Court noted that the Family Court had already been directed on 25.03.2026 to hear the interim custody application on an urgent basis, and the matter was fixed for final written arguments on 28.04.2026.
"The pleadings before the learned Family Court are completed. The written arguments will be filed on 28th April, 2026 and as such, it would be in the interest of the parties that the parties are relegated to the Family Court for the purpose of deciding the application for interim custody / access."
The Court held that the core dispute - whether the child was forcibly removed or taken for medical care - is a factual issue requiring evidence, cross-examination, and evaluation of documents and witnesses. Such issues are beyond the scope of a writ petition, which is not a trial court. The Court distinguished Yashita Sahu and Tejaswini Gaud, noting those cases involved clear cases of abduction by third parties or detention without legal authority, not disputes between natural parents.
"This is a case of oath against oath. The Petitioner - father has filed the custody application before the learned Family Court which is pending... and the competent Family Court has already taken up the matter on an urgent basis."
The Court further observed that the mother’s entry via fingerprint lock negated the allegation of illegal trespass. The child’s health condition, as claimed by the mother, could not be dismissed without evidence. The Court declined to evaluate CCTV footage or credibility of witnesses in a writ proceeding.
The Verdict
The petition is dismissed. The Court holds that no extraordinary circumstances exist to justify intervention under habeas corpus. The minor child remains in the custody of the mother pending final adjudication by the 5th Family Court, Bandra. The Court explicitly keeps all contentions of both parties open for determination in the pending custody proceedings. No costs are imposed on the petitioner. The Family Court is directed to decide the interim custody application without being influenced by any observations in this judgment.
What This Means For Similar Cases
Habeas Corpus Is Not a Substitute for Custody Proceedings
Practitioners must not file writ petitions under Article 226 merely to expedite custody outcomes when Family Court proceedings are active.
Courts will dismiss such petitions unless there is clear, verifiable evidence of unlawful detention by a non-parent or a complete denial of access with no legal basis.
Natural Parental Custody Presumed Lawful Absent Proof of Illegality
A parent’s removal of a child from the other parent’s residence, even if contested, does not automatically constitute illegal detention under habeas corpus.
The burden is on the petitioner to prove not just disagreement, but unlawful force, coercion, or violation of court orders.
Family Courts Are the Primary Forum for Interim Custody
Courts will prioritize the specialized jurisdiction of Family Courts for interim relief.
Any order directing urgent hearing of interim custody applications (as in this case) significantly weakens the grounds for habeas corpus intervention.
Practitioners should focus on securing interim orders in Family Court rather than initiating parallel writ proceedings.
Evidence Must Be Presented in Trial, Not Writ
Allegations of force, CCTV footage, or medical emergencies must be tested through evidence in the Family Court.
Writ courts will not weigh conflicting affidavits or assess credibility of witnesses.
No Costs for Frivolous Writs, But Strategic Risk Remains
While the Court declined to impose costs here, filing a writ petition without clear illegality may be viewed as litigation abuse.
Courts may later consider such petitions as dilatory if they delay the Family Court process.
