The Bombay High Court has firmly reiterated that habeas corpus petitions cannot be weaponized to circumvent established civil procedures in child custody disputes. This ruling reinforces the principle that extraordinary writ jurisdiction must yield to statutory remedies designed for the nuanced determination of a child’s best interests.
Background & Facts
The Dispute
The petitioner, Praful Shankar Gedam, sought a writ of habeas corpus directing authorities to trace and deliver custody of his minor son, Vipul, who is currently in the care of his mother, Respondent No. 4. The petitioner alleged that the mother suffers from a mental ailment and is unfit to care for the child. He relied on an interim order dated 16 January 2026 from the trial court, which had directed the police to take custody of the child and hand him over to the petitioner if the mother failed to comply.
Procedural History
- 16 January 2026: Trial court granted interim custody to the petitioner and directed police to enforce the order.
- Before the High Court: Petitioner filed Criminal Writ Petition No. 96 of 2026 seeking enforcement of the interim order via habeas corpus.
- State’s Response: The Additional Public Prosecutor confirmed that the mother is untraceable at her last known address and that the interim order has been challenged by the mother’s brother in a separate proceeding.
Relief Sought
The petitioner sought immediate enforcement of the trial court’s interim custody order through a writ of habeas corpus, effectively bypassing the pending challenge to that order.
The Legal Issue
The central question was whether a writ of habeas corpus can be invoked to enforce an interim custody order in a dispute where the child’s custody is already governed by civil proceedings under the Guardians and Wards Act or the Hindu Minority and Guardianship Act.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the mother’s alleged mental instability rendered her custody unlawful, thereby justifying the invocation of habeas corpus as an extraordinary remedy. He contended that the trial court’s interim order conferred legal authority on the petitioner and that non-compliance amounted to illegal detention.
For the Respondent/State
The Additional Public Prosecutor did not dispute the mother’s unavailability but emphasized that the interim custody order was under challenge and that the child’s custody remained lawful under existing civil proceedings. The State argued that habeas corpus was not the appropriate forum to adjudicate parental fitness or resolve custody disputes.
The Court's Analysis
The Court undertook a rigorous examination of the nature and scope of habeas corpus in child custody matters, relying heavily on the Supreme Court’s decision in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42]. The Court emphasized that habeas corpus is an extraordinary remedy, meant only for cases of illegal detention without legal authority.
"Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court."
The Court noted that the mother’s custody, even if contested, was not illegal - it was subject to ongoing civil proceedings. The interim order, while granting temporary custody to the petitioner, did not extinguish the mother’s legal rights. The Court further observed that writ courts lack the procedural machinery to conduct detailed inquiries into parental fitness, medical condition, or child welfare, which are essential in custody matters.
The Court distinguished between summary writ jurisdiction and the comprehensive, evidence-based process mandated under the Guardians and Wards Act. It held that the welfare of the child, not procedural convenience, must govern custody determinations, and that such determinations require a full trial with cross-examination, expert testimony, and social worker reports - all beyond the scope of a writ petition.
The Verdict
The petitioner’s writ petition was not dismissed outright but was held to be premature and procedurally flawed. The Court held that habeas corpus cannot be used to enforce interim custody orders when civil remedies remain pending. The petitioner was directed to pursue his claims through the appropriate civil court.
What This Means For Similar Cases
Habeas Corpus Is Not a Shortcut to Custody
- Practitioners must avoid filing habeas corpus petitions to bypass civil custody proceedings under the Guardians and Wards Act or Hindu Minority and Guardianship Act.
- Courts will routinely decline writ jurisdiction where statutory remedies are available and active.
- Interim custody orders, even if issued by a trial court, do not convert lawful custody into illegal detention warranting habeas corpus.
Welfare of the Child Demands Detailed Inquiry
- No affidavits alone suffice: Writ courts cannot determine parental fitness or child’s best interests on affidavits alone.
- Mandatory civil route: Any dispute involving custody, guardianship, or parental fitness must be heard by a civil court with jurisdiction under the relevant Act.
- Judicial restraint: High Courts must resist the temptation to resolve complex family disputes summarily, even when emotions run high.
Interim Orders Do Not Alter Legal Custody Status
- An interim order granting custody does not extinguish the other parent’s legal rights.
- Enforcement of such orders must follow civil procedures, not criminal writs.
- Police cannot be directed to enforce custody via habeas corpus unless there is clear, proven illegal detention.
