1. Court’s decision
The Bombay High Court (Aurangabad Bench) has dismissed a mother’s petition seeking a writ of habeas corpus for immediate custody of her two minor children (aged below five), presently with their father. The Court held that a habeas corpus remedy in child-custody disputes is extraordinary, permissible only where the child is unlawfully detained by someone with no legal entitlement to custody.
Because the father is a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, and because the mother’s custody proceedings are already pending under the Guardians and Wards Act, the Court held that custody must be decided in a proper guardianship trial, not via a summary writ jurisdiction.
Accordingly, the writ petition was dismissed and Rule discharged.
2. Facts
The petitioner married respondent no. 3 on 30.08.2020 and resided with him in Sangli District. Two children were born—Abhir (27.02.2022) and Abhira @ Aarya (17.11.2023). The petitioner alleged that she was assaulted and expelled from the matrimonial home on 02.06.2025, with the father taking away both minor children.
She then moved to her parental home in Latur District and filed Civil Misc. Application No. 156/2025 before the District Judge, Latur, seeking custody under Section 25 of the Guardians and Wards Act and Section 6 of the Hindu Minority and Guardianship Act.
The father objected, arguing lack of territorial jurisdiction, claiming the minors’ ordinary residence was in Sangli. The District Judge upheld this objection and dismissed the maternal custody application on 18.09.2025. A civil revision is pending before the High Court.
Instead of waiting for the outcome of the revision, the petitioner filed the present writ of habeas corpus seeking immediate custody.
3. Issues
The Court examined:
- Whether a habeas corpus petition seeking custody is maintainable when the child is with a natural guardian.
- Whether custody disputes between parents require a detailed welfare inquiry inappropriate for summary writ proceedings.
- Whether the pending civil revision under guardianship law should govern the custody determination.
- Whether judgments relied upon by the petitioner (including Veena Kapoor and a Bombay High Court decision from 2025) apply.
4. Petitioner’s arguments
The petitioner argued that:
• under Section 6(a) of the Hindu Minority and Guardianship Act, custody of children below five years must ordinarily lie with the mother;
• therefore, the father’s current custody is contrary to the statutory presumption;
• habeas corpus is maintainable because the mother’s custody rights flow directly from statute;
• judgments such as Veena Kapoor, Pravin Nathalal Parghi, and Sarabjit support intervention to restore custody to a mother of very young children.
She urged the Court to direct the father to immediately hand over the children despite the pending revision.
5. Respondents’ arguments
The State opposed maintainability, arguing:
• the children are with their father, a natural guardian, so custody is not illegal;
• the remedy lies in proceedings under the Guardians and Wards Act, not in a writ;
• the petition should have been filed before the Kolhapur Bench because the minors ordinarily reside in Sangli;
• the Supreme Court’s ruling in Tejaswani Gaud directly establishes that habeas corpus is not maintainable where custody is with a parent entitled to it.
6. Analysis of the law
The Court engaged in an extensive analysis of child-custody jurisprudence:
A. Habeas corpus in custody cases is exceptional
The Court reiterated the Supreme Court’s formulation in Tejaswani Gaud:
• Writ jurisdiction is summary, based on affidavits.
• Habeas corpus in custody matters applies only when the child is with someone not entitled to custody.
• When deeper inquiry regarding welfare is needed, parties must go to the civil court.
B. Both parents are natural guardians
Unlike cases where custody is with distant relatives, here both parties are parents. When custody is with a legally recognised natural guardian, there is no illegal detention.
The Court emphasised that interpreting Section 6 to automatically shift “ordinary residence” to the mother’s location violates the statutory scheme, as the provision establishes a preference—not an automatic transfer—of custody.
C. Welfare inquiry cannot be done in writ jurisdiction
Child-custody cases require:
• evaluation of parental conduct,
• stability of environment,
• emotional and developmental needs,
• educational and safety considerations.
These cannot be adjudicated in a summary proceeding.
The Court found that a full-fledged welfare inquiry is already pending in the civil revision, which should proceed.
D. Precedents cited by the petitioner were distinguishable
The Court noted:
• Veena Kapoor involved custody with the father but the Supreme Court still declined to grant habeas corpus and instead sent parties to the District Judge.
• Pravin Nathalal Parghi involved custody with persons who were not natural guardians.
Thus, none supported the mother’s direct claim via habeas corpus in this parent-versus-parent dispute.
7. Precedent analysis
(1) Tejaswani Gaud (2019)
The Supreme Court held:
• Habeas corpus lies only when custody is illegal.
• Where detailed inquiry into welfare is needed, writ courts must decline jurisdiction.
• A father is a natural guardian; custody with him is not unlawful.
The High Court applied this ratio directly.
(2) Veena Kapoor (1982)
While emphasising the mother’s welfare claims, the Supreme Court refrained from issuing habeas corpus and directed a guardianship inquiry. The High Court noted the same approach applies here.
(3) Pravin Nathalal Parghi (Bombay HC, 2025)
This case involved custody with persons who were not legally entitled to retain the child. Hence it was not comparable.
8. Court’s reasoning
The Court gave four core reasons for refusing relief:
- No illegal custody
The children were with their father, a natural guardian. Habeas corpus cannot lie against a parent who is legally entitled to custody. - Detailed welfare inquiry required
Custody of children under five demands a comprehensive inquiry not suitable for summary writ jurisdiction. - Parallel guardianship proceedings pending
The petitioner already invoked the correct jurisdictional forum. The civil revision must determine custody after evaluating welfare. - Extraordinary writ jurisdiction inappropriate
The situation does not meet the threshold of “exceptional circumstances” required by the Supreme Court for habeas corpus custody orders.
9. Conclusion
The Court dismissed the writ petition, holding:
• the custody with the father is not illegal;
• the writ of habeas corpus is not maintainable;
• custody issues must be resolved through the pending civil revision and guardianship proceedings.
Rule was discharged and the petition dismissed.
10. Implications
This judgment reinforces:
• Habeas corpus is not an alternative to guardianship proceedings when both parents are legal custodians.
• Mothers of very young children must still pursue detailed welfare inquiries under statutory custody laws.
• Section 6 of the Hindu Minority and Guardianship Act creates a presumption, not an automatic custody rule.
• Territorial jurisdiction disputes in custody matters must be addressed before the proper forum, not via writ petitions.
• High Courts must avoid short-circuiting welfare inquiries through summary jurisdiction.
The ruling aligns with national precedents preserving the primacy of welfare over procedural shortcuts.
CASE-LAW REFERENCES (as applied)
• Tejaswani Gaud v. Shekhar Tewari — habeas corpus maintainable only when custody is illegal.
• Veena Kapoor v. Varinder Kapoor — emphasizes welfare; still directs parties to guardianship forum.
• Pravin Nathalal Parghi — distinguishes cases where custody is with non-guardians.
FAQs
1. Can a mother file a habeas corpus petition for custody if the children are living with the father?
Not ordinarily. If the father is a natural guardian, custody is not illegal. Courts require the mother to proceed under guardianship statutes.
2. Does Section 6 of the Hindu Minority and Guardianship Act automatically give the mother custody of children below five?
No. It creates a presumption, but final determination requires a welfare inquiry.
3. When will High Courts grant habeas corpus in child custody matters?
Only when the child is unlawfully detained by someone not entitled to legal custody, or in exceptional circumstances where ordinary remedies are ineffective.