Mother Is Natural Guardian Of Girl Child Below Five, Father’s Custody Claim Based On Disputed Separation Deed Does Not Defeat Habeas Corpus: Gujarat High Court
Isabella Mariam
The High Court of Gujarat Division Bench of Justice N.S. Sanjay Gowda and Justice D.M. Vyas allowed a habeas corpus petition by a mother seeking custody of her four-year-old daughter and held that the mother was entitled to retain custody, while granting the father weekend visitation at the mother’s residence. The Bench held that for a girl below five years, the mother is the natural guardian under the Hindu Minority and Guardianship Act and found that the father’s reliance on a disputed separation deed alleging voluntary transfer of custody did not defeat the maintainability of the habeas corpus petition.
The petitioner–mother filed a writ of habeas corpus seeking production of her four-year-old daughter, alleging that the child was in the unlawful custody of the father. The parties married in December 2020 and their daughter was born in December 2021. In May 2024, they separated, and the mother left the matrimonial home with the child. It was admitted that from May 2024 onwards, the child remained in the mother’s custody and no legal proceedings were initiated by the father during that period.
In July 2025, a separation deed was executed. The father contended that custody of the child was voluntarily handed over to him under the deed. He relied on a handwritten letter addressed by the mother to the child’s school seeking refund of fees, referring to “Due to My Divorce.” The mother alleged that her signature on the separation deed was obtained by force and deception and that custody was not voluntarily transferred. The Court examined provisions of the Hindu Minority and Guardianship Act, 1956, and the Guardian and Wards Act concerning custody and welfare of a minor.
The Court first recorded the governing principle on maintainability of habeas corpus in child custody matters by relying on Supreme Court precedent. It stated: “Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy;” and further recorded: “The High Court always has the discretion not to exercise the writ jurisdiction depending upon the facts of the case. It all depends on the facts of individual cases;” The Court also recorded that “the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking Habeas Corpus concerning a minor.”
On that basis, the Court stated that “the argument of the learned counsel of Bhavikbhai that the custody of child which was voluntarily handed over by amounts to lawful custody and cannot be interfered by entertaining a writ seeking for issuance of habeas corpus cannot be accepted,” and recorded that “the fundamental and basic principle of law in cases relating to the custody of a minor child while exercising habeas corpus jurisdiction would be an examination and determination of the best interests of the minor child.”
While examining lawful custody, the Court recorded suspicion regarding the separation deed and stated: “this deeds does not inspire confidence to us as a document which dissolved the marriages and settled the custody of child.” It further stated: “prima facie, it is our view that this document is suspicious and the possibility of the first page having been inserted or substituted cannot be ruled out.”
The Court then addressed the school letter and recorded: “In our view, this argument cannot be accepted.” It stated that “the question of Kinjal stating that she had secured a divorce on 10.7.2025, while addressing a letter to the School, renders the entire separation deed doubtful,” and added that “The letter is in fact silent regarding the custody of child.”
On the effect of the notarial endorsement and later Section 13B petition, the Court stated that “the document only recorded an agreement to divorce” and that “the marriage subsisted till an appropriate decree from the Court was obtained.” It further recorded that the Section 13B petition “virtually renders the customary deed of no consequence.”
Finally, the Court held: “we are constrained to hold that the custody of the 4 year old child by the father cannot be termed as lawful.” On welfare, it stated that “to separate the mother from her girl child, who is just about 4 years old… would not be in the interest of the child and would cause trauma to the child.”
The Court ordered:“we hold that the mother would be entitled to retain the custody of her 4 year’s old daughter. The father… shall also have the right to visit his daughter on every weekend on Saturday and Sunday between 3.00 pm and 5.00 pm at the house of Kinjal and he will be allowed unhindered access between 3.00 pm and 5.00 pm.”
It clarified that the order was “subject to the right of Bhavikbhai to approach the appropriate Family Court to establish that the custody of the child should be given to him” and added that, “the observations made in this order shall not be construed by the Family Court as this Court rendering an opinion on the merits of the claim of the mother or the father in relation to the custody of. The Family Court shall take an independent view of the matter on the basis of the evidence that is adduced before it.”.
“The original separation deed and the petition prepared under Section 13B of the Hindu Marriage Act which was placed on record by Bhavikbhai shall be a part of this record and a certified copy of these documents shall be made available to Bhavikbhai to enable him to produce it in a proceeding that he may want to initiate before the Family Court. If the Family Court requires the aforesaid original documents, it may address a letter to the Registrar General of this Court and the documents shall then be directly transmitted to the concerned Family Court.”
“The writ petition is accordingly allowed.”
Advocates Representing the Parties
For the Petitioners: Mr. Dharm K. Raval, Advocate
For the Respondents: Mr. Hari K. Brahmbhatt, Advocate; Mr. Chintan Dave, APP
Case Title: XXX v. State of Gujarat & Ors.
Neutral Citation: 2026: GUJHC:12448-DB
Case Number: R/Special Criminal Application (Habeas Corpus) No. 471 of 2026
Bench: Justice N.S. Sanjay Gowda and Justice D.M. Vyas
