The Allahabad High Court recently dismissed a habeas corpus petition filed by a grandfather seeking visitation rights to his minor grandson, holding that such disputes must be adjudicated through the Family Court and not through extraordinary writ jurisdiction. The judgment underscores the limited scope of habeas corpus petitions in custody matters where legal proceedings are already pending before a competent court.
Background & Facts
The Dispute
The petitioner, Shaheed Muhammad, filed a habeas corpus writ petition under Article 226 of the Constitution of India seeking visitation rights to his minor grandson, Babi @ Mohammad Ali, aged about six years. The corpus is in the custody of respondent No. 3, Smt. Rubina Khan, the petitioner's daughter-in-law. The petitioner's son, Late Mohammad Sadiq Khan, was married to respondent No. 3, but their marriage was dissolved by a decree of divorce by mutual consent. Subsequently, the petitioner's son passed away on 09.08.2023 due to illness.
Key Facts
- The marriage between the petitioner's son and respondent No. 3 was dissolved by a decree dated 23.03.2023, with custody of the minor corpus entrusted to respondent No. 3
- The petitioner's son, Mohammad Sadiq Khan, expired on 09.08.2023
- The petitioner instituted Case No. 2 of 2025 under Sections 7 and 25 of the Guardians and Wards Act, 1890 before the Additional Principal Judge, Family Court, Jhansi, seeking custody of the minor corpus
- During the pendency of the proceedings, the petitioner filed Application No. 12-D praying for visitation rights to meet the corpus every Sunday between 10:00 a.m. and 5:00 p.m.
- The Family Court rejected the application vide order dated 16.10.2025
Procedural History
- 23.03.2023: Decree of divorce by mutual consent passed, granting custody of the minor to respondent No. 3
- 09.08.2023: Death of the petitioner's son, Mohammad Sadiq Khan
- 2025: Institution of Case No. 2 of 2025 before the Family Court, Jhansi
- 2025: Filing of Application No. 12-D for visitation rights
- 16.10.2025: Family Court rejects the application for visitation rights
- 2026: Present habeas corpus writ petition filed before the Allahabad High Court
Relief Sought
The petitioner sought visitation rights to meet the minor corpus, who is the sole surviving descendant of the petitioner's family, through the extraordinary jurisdiction of the High Court under Article 226.
The Legal Issue
The central question before the Court was whether a habeas corpus petition under Article 226 is maintainable for seeking visitation rights where the custody of the minor is already determined by a competent court and the issue is sub judice before the Family Court.
Arguments Presented
For the Petitioner
The petitioner contended that he sought only visitation rights to meet his minor grandson, who is the sole surviving descendant of his family. He argued that the custody of the corpus with respondent No. 3 was pursuant to a decree of divorce, and there was no allegation of illegal detention. The petitioner relied on the fact that the Family Court had already rejected his application for visitation rights, and he sought intervention through the extraordinary writ jurisdiction of the High Court.
For the Respondent
The respondent, represented by the Government Advocate (G.A.), argued that the custody of the minor corpus was determined by a competent court through a decree of divorce, and there was no allegation of illegal or unlawful detention. It was further contended that the issue of visitation rights was already sub judice before the Family Court, and the petitioner could not bypass the statutory remedy by invoking the extraordinary writ jurisdiction.
The Court's Analysis
The Court observed that the custody of the minor corpus was with respondent No. 3 pursuant to a decree passed by a competent court. There was no material on record to indicate that the corpus was under any illegal or unlawful detention, which is a prerequisite for the issuance of a writ of habeas corpus. The Court emphasized that habeas corpus is an extraordinary remedy intended to secure the release of a person from unlawful detention, and it cannot be used to seek visitation rights or to bypass statutory proceedings pending before a competent court.
The Court noted that the petitioner had already instituted proceedings under Sections 7 and 25 of the Guardians and Wards Act, 1890 before the Family Court, seeking custody and visitation rights. The Family Court had rejected the application for visitation rights by a reasoned order. The Court held that the petitioner could not be permitted to invoke the extraordinary writ jurisdiction to indirectly obtain the very relief that had been declined by the competent court.
"There is nothing on record to indicate that the corpus is under any illegal or unlawful detention so as to warrant the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India in the nature of a writ of habeas corpus. It is also evident that the issue relating to the custody and allied rights of the parties is already sub judice before the competent Family Court in Case No.2 of 2025, wherein the petitioner has also sought visitation rights, which have already been declined by the Family Court by a reasoned order."
The Verdict
The Allahabad High Court dismissed the habeas corpus writ petition. The Court found no ground to entertain the petition, holding that the petitioner could not invoke the extraordinary writ jurisdiction to seek visitation rights where the issue was already pending before the Family Court and had been rejected by a reasoned order.
What This Means For Similar Cases
Habeas Corpus Cannot Be Used to Bypass Statutory Remedies
- Practitioners must note that habeas corpus petitions are not maintainable for seeking visitation rights or custody where the custody of the minor is already determined by a competent court
- The remedy of habeas corpus is limited to cases of illegal or unlawful detention and cannot be used to circumvent proceedings pending before statutory forums like the Family Court
Family Court Proceedings Are the Appropriate Forum for Custody Disputes
- Parties involved in custody or visitation disputes must exhaust remedies before the Family Court under the Guardians and Wards Act, 1890 or other relevant statutes
- The High Court will not entertain petitions under Article 226 where the issue is already sub judice before a competent court, and no illegal detention is alleged
Extraordinary Jurisdiction Is Not a Substitute for Statutory Appeals
- The judgment reinforces that the extraordinary writ jurisdiction under Article 226 cannot be used as a substitute for statutory appeals or remedies
- Parties must adhere to the procedural hierarchy and cannot bypass lower courts by directly approaching the High Court for reliefs that have already been declined by competent authorities
