The Delhi High Court has affirmed that the natural father of a minor child is entitled to custody unless proven unfit, even when facing serious criminal allegations, provided no concrete evidence of harm to the child exists. The judgment reinforces that the welfare of the child, not the pendency of criminal proceedings, must govern custody determinations under the doctrine of parens patriae.
Background & Facts
The Dispute
The petitioner, Vikram Sharma, is the biological father of Ms. XXX, a minor girl born on 28.08.2024. He was married to Late Uma Sharma, daughter of respondents 4 to 6, on 23.11.2023. The child resided with both parents until the tragic death of the mother on 24.09.2025, when she died by suicide. Following her death, respondents 4 to 6 - the maternal grandparents and maternal uncle - took the child into their custody. The petitioner, who was arrested on 29.09.2025 in connection with an FIR registered under Section 80/3(5) of the Bharatiya Nyaya Sanhita, 2023, remained in judicial custody until 13.01.2026, when he was released on bail by the Additional Sessions Judge, Shahdara.
Key Facts
- The child was born on 28.08.2024 and was approximately 1 year and 8 months old at the time of the judgment (04.05.2026)
- The petitioner was the primary caregiver alongside the deceased mother prior to her death
- On 25.02.2026, the petitioner filed a complaint with the DCP (North East) seeking assistance to regain custody
- On 07.03.2026, the petitioner withdrew a complaint under Section 100 of BNSS before the JMFC, Shahdara, with liberty to approach the appropriate forum
- A separate complaint under Section 223 read with Section 175(3) of BNSS was filed and is pending with the JMFC, with an Action Taken Report called for
- The petitioner was released on bail on 13.01.2026, with the court noting no specific allegations of dowry demand or cruelty soon before the wife’s death
- The respondents have not produced any medical, psychological, or social evidence demonstrating the petitioner’s unfitness
Procedural History
- 23.11.2023: Marriage between petitioner and Late Uma Sharma solemnized
- 28.08.2024: Birth of minor daughter, Ms. XXX
- 24.09.2025: Death of wife by suicide; child taken into custody by maternal family
- 29.09.2025: FIR No. 520/2025 registered under Section 80/3(5) of BNS; petitioner arrested
- 13.01.2026: Petitioner released on bail by Additional Sessions Judge, Shahdara
- 25.02.2026: Petitioner files complaint with DCP (North East) seeking custody
- 07.03.2026: Withdrawal of BNSS Section 100 complaint before JMFC, Shahdara, with liberty to approach appropriate forum
- 04.05.2026: Judgment delivered by Delhi High Court on W.P.(Crl.) 806/2026
The Parties' Positions
For the Petitioner
The petitioner asserts that as the biological father, he is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, and is therefore entitled to custody. He contends that the respondents have no legal basis to retain the child and that the criminal case against him, while pending, does not establish unfitness. He relies on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 to argue that habeas corpus is maintainable to restore custody to the natural guardian.
For the Respondents
The respondents challenge the maintainability of the writ petition, arguing that custody disputes must be resolved under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, and not through writ jurisdiction. They further contend that the petitioner’s involvement in a criminal case involving the death of the child’s mother renders him unfit to care for the child, relying on Nil Ratan Kundu v. Abhijeet Kundu (2008) 9 SCC 413 and Shaurya Gautam v. State of U.P. (2020 SCC OnLine All 1372).
Relief Sought
The petitioner seeks immediate delivery of custody of Ms. XXX from respondents 4 to 6, and directions to ensure his rights as natural guardian are upheld. He also seeks a declaration that the retention of the child by the respondents is illegal.
The Legal Issue
The central question was whether a writ of Habeas Corpus is maintainable to restore custody of a minor to her natural father, despite pending criminal proceedings against him, and whether the pendency of such proceedings alone disqualifies him from custody under the Hindu Minority and Guardianship Act, 1956.
Arguments Presented
For the Petitioner
The petitioner relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, which held that writ jurisdiction under Article 226 can be invoked to restore custody of a minor to the natural guardian when wrongfully deprived. He emphasized that the bail order dated 13.01.2026 found no specific allegations of dowry demand or cruelty proximate to the wife’s death, and that the diary entries relied upon by the trial court were not yet proven forged. He argued that the welfare of the child, not the stigma of criminal allegations, must govern custody decisions.
For the Respondent
The respondents contended that writ jurisdiction cannot substitute civil proceedings under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, citing Jaspreet Singh v. State of Punjab (2026:PHHC:056584). They argued that the petitioner’s involvement in a case involving the death of the child’s mother raises serious concerns about his character and fitness, relying on Nil Ratan Kundu and Shaurya Gautam, where custody was denied to fathers facing murder charges. They further alleged that the diary entries were forged and that the child’s emotional and physical safety would be compromised in the petitioner’s custody.
The Court's Analysis
The Court began by affirming the principle that the welfare of the child is the paramount consideration in all custody matters, as established in Tejaswini Gaud and reiterated in Gautam Kumar Das v. NCT of Delhi (2024) 10 SCC 588 and Vivek Kumar Chaturvedi v. State of U.P. (2025) 4 SCC 342. The Court held that while civil courts are the ordinary forum for custody disputes, writ jurisdiction under Article 226 is not barred in cases where a minor is illegally detained by a person who is not the legal guardian.
"The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child."
The Court distinguished Shaurya Gautam, where the father was accused of murder, noting that in the present case, the trial court had already found no specific allegations of cruelty or dowry demand proximate to the wife’s death. The bail order explicitly stated that the allegations were general and unsupported by the diary entries, and that the matter of dowry demand must be left for trial.
The Court further emphasized that the petitioner is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, and that the burden lies on the respondents to prove unfitness. No such evidence was produced. The child, being only 1 year and 8 months old, was too young to express preference, and the Court applied the principle of parens patriae to determine that the father, as the natural guardian, is better suited to provide care.
The Court acknowledged the respondents’ concerns but held that the mere pendency of a criminal case, without concrete proof of harm or unfitness, cannot override the father’s statutory right. The Court noted that if the FSL report later proves the diary entries forged, the respondents may seek modification of the order.
The Verdict
The petition succeeded. The Court directed respondents 4 to 6 to hand over custody of Ms. XXX to the petitioner forthwith. The petitioner was directed to grant unrestricted visitation rights to respondents 4 to 6 between 11 AM and 6 PM every Saturday, subject to modification by the Family Court. The Court preserved the respondents’ right to seek modification of this order upon receipt of the FSL report or any subsequent development in the criminal case.
What This Means For Similar Cases
Natural Guardianship Prevails Over Pending Charges
- A parent’s status as natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956 cannot be suspended merely due to the pendency of a criminal case
- Courts must distinguish between allegations and proven unfitness; suspicion alone is insufficient to override statutory rights
- Practitioners should argue that the burden of proving unfitness lies squarely on the party opposing custody
Habeas Corpus as a Viable Remedy in Custody Disputes
- Writ petitions under Article 226 remain maintainable when a minor is wrongfully detained by non-guardians, even if civil remedies exist
- The Supreme Court’s trilogy in Tejaswini Gaud, Gautam Kumar Das, and Vivek Kumar Chaturvedi establishes a clear threshold: illegal detention by non-guardians triggers writ jurisdiction
- Lawyers should consider filing habeas corpus petitions where custody is seized abruptly, especially in cases involving maternal families withholding children
Welfare of the Child Requires Proactive Judicial Assessment
- Courts must conduct a positive assessment of fitness - not merely a negative test of disqualification
- In cases involving infants, the natural guardian’s role under personal law is decisive absent evidence of harm
- Judges should not defer to criminal proceedings as a proxy for civil custody determinations
