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Maintainability of Habeas Corpus Petition for seeking Child Custody



Habeas Corpus, is a legal remedy originating from Latin, meaning to ‘produce the body.’ Its primary purpose is to safeguard individual liberties and guarantee due process. When it comes to child custody disputes in India, filing Habeas Corpus petitions can serve as an efficacious legal option for parents seeking custody of their child. This article aims to examine the legal ramifications, obstacles, and factors to consider when pursuing Habeas Corpus petitions to obtain child custody in India.

In petition seeking child custody, essential to strike a balance between parental rights and the best interests of the child.

Understanding Habeas Corpus

The writ of Habeas corpus cum causa is a directive that compels the individual responsible for detaining another person to bring that person before the court and provide a legal justification for the confinement. It demands an explanation regarding the grounds and authority under which the person has been held captive. In the event that the court finds no valid legal justifications, it will order the immediate release of the detained individual.

Therefore, the eligible individuals who can seek the writ of habeas corpus include:

  1. The person who is being unlawfully confined or detained.
  2. The person who is aware about the potential benefits of the case.
  3. The person who possesses knowledge about the facts and circumstances of the case and willingly submits an application for the writ of habeas corpus under articles 32 and 226 of the Indian constitution.

Judicial Precedents and Interpretations

The Gujarat High Court recently dismissed a habeas corpus petition filed by a father who sought custody of his children from his wife, who is living separately. The petitioner-father filed a writ of habeas corpus, seeking custody of his minor son and daughter, as his wife had been living separately due to marital discord since December 17, 2022. The petitioner’s counsel argued for his right to the children’s custody. 

The division bench of Justice Umesh A. Trivedi and Justice M. K. Thakker held that the petition could not be entertained due to the petitioner’s failure to pursue alternative remedies. The court noted that the petitioner was facing an FIR, along with his family members, for various offenses related to cruelty, hurt, insult, criminal intimidation, and abetment. It highlighted that the habeas corpus petition was filed under the guise of seeking child custody, while the petitioner’s true motive appeared to be avoiding legal consequences.

The court emphasized that the petitioner had not made any effort to seek custody of the children, whether permanent or interim, nor had he pursued visitation rights. It also noted that there was no allegation of unlawful abduction or illegal confinement of the children by the respondent wife. The bench highlighted that the petitioner should have availed himself of other available remedies before resorting to a habeas corpus petition. The court stated that the petitioner had not adopted alternative remedies and had filed the petition as a means of evading legal consequences related to his marital discord and pending criminal charges. The court held that the petition could not be entertained since there was no unlawful abduction or illegal confinement of the children, and the petitioner had not taken steps to seek custody or visitation rights through appropriate legal channels.

However, recently Gujarat High Court, while dealing with a plea filed by the mother of a minor child, recently held that the habeas corpus petition is maintainable in matters of child custody, provided that detention of the minor child by the other parent or others is proved to be illegal and without any authority of law, thus holding Habeous Corpus maintainable in child custody matters when detention of minor by other parent is proved illegal. 


Habeas Corpus petitions present an important legal avenue for parents seeking child custody in India. This article has examined the various aspects and challenges involved in filing such petitions, considering both the legal framework and judicial interpretations. While Habeas Corpus remains a vital tool to safeguard individual liberties, it is essential to strike a balance between parental rights and the best interests of the child.  


    1. Habeas Corpus Petition Maintainable In Child Custody Matters When Detention of Minor By Other Parent Is Proved Illegal: Gujarat High Court – LiveLaw
Written by, Parthvi Patel, United World School of Law



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