Father forcibly taking child from mother not illegal detention sans court order: HC

Prayagraj: Dismissing a woman’s habeas corpus petition as non-maintainable, the Allahabad high court has observed that a father, as the natural guardian of a Hindu minor, cannot be said to illegally detain a child even if he forcibly takes custody from the mother, unless the act violates a court order.

The woman had claimed that her estranged husband took away their two minor children at gunpoint in 2022 and had kept them under illegal detention since then.

On behalf of the mother, Anjali Devi, it was submitted that several applications were filed before different forums seeking custody of the kids. However, no effective action was taken. The petitioner's counsel also relied upon the HC's recent judgment in Rinku Ram alias Rinku Devi and another v. State of UP and seven others to argue that the court can invoke its extraordinary jurisdiction in the best interest of the child, even in cases where a child is in the custody of another parent.

The state counsel and the counsel for the respondent submitted that both minors have been residing with the father since 2022, and the mother, before moving the high court, had not availed remedy under the Guardian and Wards Act. It was also argued that the custody disputes between parents ordinarily cannot be adjudicated in a writ petition under Article 226 of the Constitution.

It was contended that the judgment in Rinku Ram case was distinguishable on the facts, as in that case, the custody of the minor was forcibly taken in violation of an order passed by the Child Welfare Committee, which had directed that custody be handed over to the mother. However, in the present case, no such circumstance existed.


Against the backdrop of these arguments, Justice Anil Kumar-X, while relying on the Supreme Court's judgment in Tejaswini Gaud and others vs Shekhar Jagdish Prasad Tewari and others, observed that habeas corpus in child custody matters can be invoked only when the custody is illegal.

The court further perused section 361 of IPC, which criminalizes taking a minor "out of the keeping of the lawful guardian". It noted that an offence would be attracted only when the minor is removed from the custody of a person legally recognized as the guardian. The court also referred to section 4(2) of the Guardians and Wards Act to note that the law recognizes the father as a natural guardian.

The court held that a mere allegation that the father has forcibly taken the minors from the custody of the mother, even if accepted on its face value, would not prove that the kids are in illegal detention.

The HC added that habeas corpus cannot be used as a substitute for remedies available under the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890. Accordingly, the high court in its judgment dated Apr 10 dismissed the habeas corpus writ petition as non-maintainable.Get real-time updates and result insights on the CBSE 12 Result 2026.