“Custody Cannot Be Won Through Habeas Corpus Alone”: Bombay High Court Dismisses Mother’s Plea, Says ‘Welfare of the Child Is Supreme’ and Father’s Custody Not Illegal
Isabella Mariam
The High Court of Judicature at Bombay Division Bench comprising Justice Sarang V. Kotwal and Justice S. M. Modak dismissed a habeas corpus petition filed by the mother seeking the custody of her minor son from the father. The Court, while stating that the welfare of the child is the paramount consideration, held that the custody of the child with the father could not be termed illegal and directed the petitioner-mother to seek remedy under appropriate statutes rather than by way of a habeas corpus petition.
The petitioner, mother of a 10-year-old child, sought a direction to the father to produce the child before the Court and for restoration of custody to her. The parties were embroiled in matrimonial discord, with the petitioner asserting deceitful removal of the child by the father.
The background revealed that the petitioner married the respondent-father on 28 November 2012 and resided at their matrimonial home in Mumbai before shifting to Goa for business purposes. Their son was born on 14 January 2015 in the United States of America, as per the respondent's desire for the child to hold an American passport.
The petitioner alleged multiple grievances, including maltreatment by the respondent and his family, deceitful termination of a residential lease, and manipulative behaviour involving the minor child. Following escalating disputes, the petitioner travelled to New York on 25 March 2024 seeking familial intervention. Upon her return on 8 April 2024, she discovered significant changes at the residence, including the presence of a security guard and surveillance installations.
The petitioner accused the respondent of obtaining the child's passport without consent and indoctrinating the child against her. Complaints were filed at N.M. Joshi Marg Police Station under Sections 341, 354, 498A, 506 read with 34 of IPC and Section 4 of the Dowry Prohibition Act. Allegations included that on 30 April 2024; the respondent removed the child without her knowledge.
In response, the respondent-father filed an affidavit denying the allegations and asserted that the child was under emotional distress requiring counselling with Dr. Philip Trenchard in the United Kingdom. The father stated the child's future educational prospects in the United States and cited his and the petitioner's own educational backgrounds in the U.S.
The petitioner contended that the father had "brainwashed" the child, rendering him hostile towards her. It was argued that the father’s Green Card status necessitated his frequent absences from India, making him an unsuitable custodian.
Legal provisions from the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 were heavily relied upon by both sides.
The Division Bench observed, "This is yet another case where the child is an innocent victim in the bitter battle between his own parents." The Court stated that Section 6 of the Hindu Minority and Guardianship Act, 1956 recognizes the father as the natural guardian of a minor boy, noting, "Thus, Section 6 clearly states that, in case of a minor boy, the father is the natural guardian."
Section 13 of the Act and Section 17 of the Guardians and Wards Act were cited regarding welfare being the paramount consideration.
Referring to precedent, the Bench stated, "Welfare of the minor child is the paramount consideration," quoting from Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.
The Court recorded that it had personally interviewed the child in chambers. It noted, "Finding him to be an intelligent child, we specifically asked his desire and wish about residing with the Petitioner or with the Respondent No.2. On this, he specifically told us that he wishes to reside with his father."
The Bench acknowledged the possibility of tutored behaviour but found, "at this stage, the boy very specifically told us his wish," concluding that immediate disruption of custody was not warranted in habeas corpus jurisdiction.
The Court distinguished the scope of habeas corpus proceedings, observing, "The disputed questions raised by the Petitioner cannot be decided conclusively in habeas corpus petition as the procedure is summary in nature." Citing Nirmala v. Kulwant Singh and others (2024 SCC OnLine SC 758) and Somprabha Rana v. State of Madhya Pradesh (2024) 9 SCC 382, it reiterated that detailed custody disputes require proceedings under the Guardians and Wards Act.
On the issue of maintainability of habeas corpus petitions in such contexts, the Court stated, "There is no doubt regarding the proposition that in a given case the petition for writ of habeas corpus brought by one parent against the other, is maintainable; provided, conditions laid down by the Hon'ble Supreme Court in the various judgments enumerated herein above are satisfied."
Accordingly, the Court held, “In this view of the matter, the proper remedy for the Petitioner would be to approach a competent court under theprovisions of the Hindu Minority and Guardianship Act, 1956. No relief can be granted to the Petitioner in the present petition.The Petition is accordingly dismissed."
It clarified that all observations made regarding the welfare of the child were for the purpose of deciding the present petition alone and that, "at an appropriate stage, the competent Courts in future are free to take their own decision in accordance with law regarding the custody and welfare of the child."
Advocates Representing the Parties:
For the Petitioner: Mr. Vikram Deshmukh, instructed by MS Legal.
For Respondents: Mr. Mahesh Jethmalani, Senior Advocate assisted by Ms. Gunjan Mangla, Pooja Jalan, and Jimi Jakhadi, Mr. B.V. Holambe Patil, APP.
Case Title: XXX v. The State of Maharashtra & Anr.
Neutral Citation: 2025: BHC-AS:19122-DB
Case Number: Criminal Writ Petition (ST) No. 10982 of 2024 with Interim Application (ST) No. 25948 of 2024
Bench: Justice Sarang V. Kotwal and Justice S. M. Modak
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