Safiya Malik

The High Court of Orissa at Cuttack, Division Bench of Chief Justice Harish Tandon and Justice Murahari Sri Raman, dismissed a habeas corpus petition filed by a father seeking custody of his five-year-old child, who had been placed in the care of the maternal aunt and uncle following the mother's death. The Court held that writ courts ought to refrain from adjudicating child custody disputes through habeas corpus proceedings unless the custody in question is demonstrably unlawful, and that cases involving complexity or requiring detailed inquiry must be remitted to the competent Civil Court.

The writ petition in the nature of habeas corpus was filed by the father of a five-year-old minor child seeking production of the child and restoration of custody from the maternal aunt and uncle. The petitioner’s wife had died prematurely, leaving the minor child behind. According to the petitioner, after his wife’s death, the maternal aunt and uncle were requested to stay with him at Chennai to look after the child. However, they allegedly took the child to Odisha without his permission, which he claimed amounted to illegal custody.

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Proceedings were initiated before the Child Welfare Committee (CWC), Balasore, alleging that the child was in need of care and protection. An order was passed directing production of the child before the CWC. The matter reached the Supreme Court, which directed production of the child before the CWC and restrained it from passing any custody order. The petitioner relied on decisions concerning maintainability of habeas corpus petitions in child custody matters and invoked his status as natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956.

The Court observed that “the only question arises in the instant writ petition, as to whether the writ Court while considering the writ petition in the nature of habeas corpus can pass an order for custody of a child in derogation with the other statutes covering the said object and what would be the parameters for exercise of such jurisdiction.”

On the scope of habeas corpus jurisdiction, the Court recorded that “it is primarily an aim to secure the physical production of a person or a body provided the possession, the custody and the detention is found unlawful and/or illegal.” It further stated that “the moment the detention appears to be either de hors the law or in colorable exercise of the powers so conferred by the law, there is no prohibition having created under Article 226 of the Constitution of India… to direct the physical presence of the person and direct the custody to be given to a proper person.”

Referring to precedent, Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42, the Court quoted: “In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be… Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court.” It also held that “Habeas corpus proceedings is not to justify or examine the legality of the custody… In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”

Summarising the legal position, the Court stated that “even though the writ petition in the nature of habeas corpus is maintainable… yet it has to be decided on the basis of the facts emerged from the record.” It added that “above all, the welfare of the child should be the paramount consideration.” The Court further observed that “the moment the custody does not appear to be illegal and/or unlawful… it would be proper for the Court to relegate the parties to approach the Civil Courts.”

In the facts of the case, the Court noted that “the custody of the child remained with opposite party no.5 in terms of the order passed by the CWC… such order having passed by the competent authority, binds the parties so long it occupies the field of litigation.” It concluded that “it can never partake a character of unlawful and/or illegal custody.”

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The Court directed that “We, thus, do not find any grounds warranting interference in the instant writ petition, which is hereby dismissed. As a result of disposal of the writ petition, pending Interlocutory Application(s), if any, shall stand disposed of, but in the circumstances there shall be no order as to costs.”

Advocates Representing the Parties

For the Petitioners: Mr. Jyoti Prakash Patra, Advocate

For the Respondents: Ms. Aishwarya Dash, Additional Standing Counsel; Mr. Sukanta Kumar Dalai, Advocate

Case Title: Shashikanta Majhi v. State of Odisha and Others
Case Number: WPCRL No.10 of 2026
Bench: Chief Justice Harish Tandon, Justice Murahari Sri Raman