Safiya Malik

The High Court of Himachal Pradesh Division Bench of Chief Justice G.S. Sandhawalia and Justice Bipin C. Negi declined to entertain a habeas corpus petition filed by a father residing abroad, who sought the production and custody of his minor daughter after the child's mother allegedly brought her to India from Bangkok without his consent. The Court held that in custody disputes between parents, a writ of habeas corpus is not the appropriate remedy, and that the matter falls within the jurisdiction of the competent Guardian Court. Noting that the mother's specific whereabouts in Dharamshala were already known to the petitioner, the Court observed that the petitioner was at liberty to approach the court of competent jurisdiction for appropriate relief, which would be sensitive to the urgency of the matter upon filing.

The petitioner, a father residing in Bangkok, Thailand, filed a habeas corpus petition before the Himachal Pradesh High Court seeking the production of his minor daughter, born on July 6, 2017, in District Kangra. The petitioner and the child's mother had solemnized their marriage on February 25, 2012, with the marriage registered on September 13, 2021. The couple had resided at various locations including Chandigarh, Mumbai, and Bangalore before eventually settling in Bangkok.

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On October 10, 2025, the mother travelled to India with the minor child. Following her hospitalization in late November 2025, her brother arrived in Bangkok, after which she departed on December 13, 2025. Upon the petitioner's return to their Bangkok residence on December 15, 2025, he discovered the child's belongings had been removed.

Repeated attempts by the petitioner and his family to establish contact with the mother proved unsuccessful, as she had changed her contact number and did not respond to calls, messages, or proposals for counselling. A conference call arranged on December 29, 2025, involving both families revealed that the mother had reached Dharamshala, after which communication ceased entirely.

The Court examined the maintainability of the habeas corpus petition in the context of a custody dispute between parents, placing reliance on its earlier decision in Saurav Rattan v. State of Himachal Pradesh & others, decided on May 9, 2025, which had addressed an identical question of law.

The Court referred to the Supreme Court's ruling in Tejaswini Gaud & others v. Shekhar Jagdish Prasad Tewari & others, and recorded the following position on the nature of habeas corpus proceedings in child custody matters: "Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court."

The Court further noted the conditions under which such a writ may be issued, observing that "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."

Drawing from its earlier decision in Saurav Rattan's case, the Court stated that it would be the Guardian Court which would go into the issue regarding custody on the basis of evidence, and that it would not be for the Writ Court to deal with the issue of habeas corpus once the dispute is between husband and wife.

On the question of the child's whereabouts being known, the Court observed that once there was a specific averment made as to where the mother was present, namely in Dharamshala, "it does not lie in the mouth of the learned Counsel to submit that the petition is being filed, as the whereabouts as such of the minor child are not known." The Court further stated that "once the whereabouts as such are specific, the concerned Court would have such jurisdiction."

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On the circumstances of the petitioner being abroad and the affidavit being attested at Pune, the Court stated: "we are of the considered opinion that if such a petition is preferred before a Court of competent jurisdiction, the Court will be sensitive to the said issue and it will ensure that the matter is taken up at the earliest, on filing of the petition which may be preferred before the said Court."

The Court directed: "Resultantly, we do not entertain the present petition keeping in view the settled position of law. Accordingly, the same is dismissed. However, a liberty is reserved to the petitioner to approach the concerned Court for appropriate relief. Pending application(s), if any, also stands disposed of."

Advocates Representing the Parties

For the Petitioner: Mr. Aashutosh Srivastava, Advocate (through Video Conferencing); Mr. Vishwajeet Singh, Advocate

For the Respondents: Mr. Rakesh Dhaulta, Additional Advocate General

Case Title: Himanshu Dilip Kulkarni v. State of Himachal Pradesh & Others

Neutral Citation: 2026:HHC:4020

Case Number: Cr. WP No. 7 of 2026

Bench: Chief Justice G.S. Sandhawalia and Justice Bipin C. Negi