Muralee Krishna, J.

1. The petitioner filed this Writ Petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the following reliefs:

                  “II. Issue a writ of habeas corpus or any other appropriate writ, order, or direction directing the respondents to produce the minor child before this Hon’ble Court;

                  III. Direct immediate restoration of communication and visitation rights of the petitioner and the petitioner’s family members in terms of the mediation agreement in GOP No. 909/2024;

                  IV. Direct the respondents No. 3 and 4 to strictly comply with the judgment dated 04.06.2025 and the mediation agreement entered therein;

                  V. Permit the minor child to remain with the petitioner from 22.05.2026 to 25.05.2026 before reopening of the school;

                  VI. Direct the respondent to disclose the present residential address and whereabouts of the minor child before this Hon’ble Court;

                  VII. The petition may kindly be granted Crl. M.A No. /2026 (Separate Application is filed)”.

2. Going by the pleadings in the writ petition, the petitioner is the father of the minor child born in wedlock between the petitioner and the 3rd respondent. The 4th respondent is the mother of the 3rd respondent. The petitioner is employed as a Client Relationship Manager in the United Arab Emirates (UAE). The child was under the care, custody, upbringing and supervision of the petitioner from 06.11.2023 to 04.06.2025. As per Ext.P1 judgment dated 04.06.2025 of the Family Court, Vatakara, in G.O.P.No.909 of 2024, pursuant to Ext.P2 mediation agreement entered into between the petitioner and the 3rd respondent, the interim custody of the child was entrusted to the 3rd respondent, subject to the specific conditions safeguarding the petitioner’s parental communications and visitation rights, besides the child’s welfare and emotional connections. According to the petitioner, the 3rd respondent wilfully and deliberately violated the conditions in the mediation agreement by denying communication, visitation and access to the minor child from 24.04.2026. All modes of communication with the child, including phone calls, WhatsApp, video calls and other communications, have been intentionally blocked by the 3rd respondent without any lawful justification, thereby violating Clause 7 of the mediation agreement.

                  2.1. It is further pleaded in the writ petition that on 16.05.2026, the petitioner filed Crl. M.P. No.03 of 2026 before the Family Court, Vatakara, seeking the restoration and enforcement of his visitation, communication and custody-related rights arising out of Ext.P1 judgment dated 04.06.2025 in G.O.P. No.909 of 2024. Though a special messenger was deputed by the Family Court, Vatakara, to serve notice to the 3rd respondent in her residence, the 3rd respondent and the minor child were not available at that address. According to the petitioner, the deliberate concealment of the residential address and whereabouts of the minor child, coupled with continued denial of communication and visitation rights, creates serious apprehension regarding the welfare, safety, emotional well-being and lawful custody of the child. The petitioner, who returned to Kerala from the UAE on 15.05.2026 solely to meet the child and spend time with her before the reopening of the school, is required to return to the UAE on or before 25.05.2026 to resume employment duties. Under those circumstances, the petitioner is constrained to file this habeas corpus petition.

3. On 22.05.2026, when this matter was called at 2.00 p.m. as a ‘today motion’, after arguing for some time, the learned counsel for the petitioner submitted that the petitioner will be filing an application to delete some of the reliefs sought for in the writ petition. Hence, we directed the Registry to list the matter at 4.00 p.m.

4. When the matter was again taken up at 4.00 p.m on 22.05.2026, the petitioner filed I.A.No.2 of 2026 to delete prayer Nos.III to VII in the writ petition. But, on going through the affidavit filed in support of the said interlocutory application, we notice that the petitioner has stated in the affidavit that the said interlocutory application was filed by the petitioner as directed by this Court to delete prayer Nos. III to VII, though no such direction was given by this Court.

5. Heard the learned counsel for the petitioner and the learned Senior Government Pleader who entered appearance for respondents 1 and 2.

6. During the Course of arguments, the learned counsel for the petitioner would place reliance on the judgment of the Apex Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari and others [(2019) 7 SCC 42], in support of her argument that, in child custody matters, also a writ of habeas corpus is maintainable.

7. We have perused the pleadings in the writ petition and the materials placed on record. But surprisingly, there is not even a whisper in the writ petition that the minor child born in wedlock between the petitioner and the 3rd respondent is in illegal confinement. The writ petition is drafted in such a casual way that even the particulars of the minor child, who is the alleged detenue, such as name, age or at least gender are not pleaded in the writ petition, except stating the name and age of the minor, the alleged detenue, in the interim relief portion. From the pleadings in the writ petition and the reliefs sought for, we notice that the petitioner is aggrieved by the violation of the conditions in Ext.P1 judgment dated 04.06.2025 of the Family Court in O.P.No.909 of 2024, for which he has already moved the Family Court, Vatakara, by filing a miscellaneous petition, i.e., Crl.M.P.No.03 of 2026, on 16.05.2026.

8. It is trite that in child custody matters, only in exceptional circumstances, a writ of habeas corpus is maintainable before the High Court under Article 226 of the Constitution of India. Habeas corpus is a prerogative writ, which is an extraordinary remedy. Recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. So also, 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. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act, 1956, or the Guardians and Wards Act, 1890, as the case may be. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court, which is summary in nature. What is important is the welfare of the child.

9. In Somprabha Rana v. State of Madhya Pradesh [(2024) 9 SCC 382], the Apex Court was dealing with a case in which the Madhya Pradesh High Court has directed appellants 1 to 3 therein, who are the real sisters of the deceased mother of the child aged two years and seven months, to hand over the custody of the child to the father, only on the consideration that he is the legal guardian. In the appeal, the Apex Court held that when the Court deals with the issue of habeas corpus regarding a minor, the Court cannot treat the child as movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. Only in substantive proceedings under the Guardians and Wards Act can the appropriate Court decide the issue of child custody and guardianship. Regular Civil/Family Court dealing with child custody cases is in an advantageous position.

Paragraphs 9 and 10 of the said decision read thus;

                  “9. The High Court was dealing with the custody of the child, whose age at that time was one year and five months. The child had been in the custody of the appellants from the tender age of 11 months after her mother died. The child, at present, has been in the custody of the appellants for more than one and a half years. When the Court deals with the issue of habeas corpus regarding a minor, the Court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. The Court has to act based on humanitarian considerations. After all, the Court cannot ignore the doctrine of parens patriae. Learned senior counsel appearing for the 2nd to 5th respondents submitted that if the Court is of the view that there is no proper consideration by the High Court, the order of remand may be passed to the High Court.

                  10. We believe that, considering the peculiar facts of the case and the child's tender age, this is not a case where custody of the child can be disturbed in a petition under Article 226 of the Constitution of India. Only in substantive proceedings under the Guardians and Wards Act can the appropriate Court decide the issue of the child custody and guardianship. Regular Civil/Family Court dealing with child custody cases is in an advantageous position. The Court can frequently interact with the child. Practically, all Family Courts have a child centre/play area. A child can be brought to the play centre, where the judicial officer can interact with the child. Access can be given to the parties to meet the child at the same place. Moreover, the Court dealing with custody matters can record evidence. The Court can appoint experts to make the psychological assessment of the child. If an access is required to be given to one of the parties to meet the child, the Civil Court or Family Court is in a better position to monitor the same”.                   (underline supplied)

10. As already noticed hereinabove, the pleadings in the present writ petition would show that the grievance of the petitioner herein is the violation of Ext.P1 judgment of the Family Court by the 3rd respondent. Admittedly, the 3rd respondent is none other than the mother of the minor child with whom the custody of the child was entrusted as per Ext.P1 judgment of the jurisdictional Family Court, based on Ext.P2 mediation agreement entered into between the petitioner and the 3rd respondent. Therefore, from the pleadings in the writ petition, it cannot be said that the minor child born in wedlock between the petitioner and the 3rd respondent, the alleged detenue, is in illegal confinement by any person, much less the 3rd respondent mother.

11. We have anxiously perused the judgment of the Apex Court in Tejaswini Gaud [(2019) 7 SCC 42], which is relied upon by the learned Counsel for the petitioner. From the facts of that case, we notice that the minor child therein was in the illegal custody of the maternal aunt and her husband, and the father of the child has approached the High Court of Bombay with the writ petition. The High Court held that the father, the only surviving parent of the child, is entitled to the custody of the child and the child needs the love, care and affection of the father. The High Court took into account that the child was looked after by the maternal aunt and her husband since the father of the child was hospitalised for a serious ailment, and in the interest and welfare of the child, it is just and proper that the custody of the child is handed over back to the father. In the appeal filed by the appellants, who are the sisters and brother of the mother of the child, the Apex Court held that they have no authority of law to have the custody of the minor child and whereas, as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent - father is a natural guardian of the minor child and has the legal right to claim the custody of the child. Noting that the child, being a minor aged 1½ years, cannot express its intelligent preferences, the Apex Court held that the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.

12. But the facts of the instant case are entirely different. The child herein is admittedly in the custody of the mother, with whom the custody of the child was given as per Ext.P1 judgment; of course, with some safeguards to protect the paternal rights of the father, the petitioner. As stated in paragraph 19 of the statement of facts, the child remained with the petitioner from 04.04.2026 to 17.04.2026, during school vacation. Going by the averments in the writ petition, on 16.05.2026, the petitioner filed Crl.M.P.No.03 of 2026 in G.O.P.No.909 of 2024 before the Family Court, Vatakara, seeking restoration and enforcement of his visitation rights arising out of Ext.P1 judgment dated 04.06.2025 of the Family Court. Though a special messenger was deputed by the Family Court to serve notice on the 3rd respondent at her residence, the 3rd respondent and the minor child were not available at that address. Therefore, the petitioner has approached this Court under Article 226 of the Constitution of India, seeking a writ of habeas corpus and for immediate restoration of visitation rights, etc. Therefore, the judgment of the Apex Court in Tejaswini Gaud [(2019) 7 SCC 42] has no application to the facts of the case in our hand.

13. Apart from all, it is interesting to note that the petitioner has arrayed the City Police Commissioner, Ernakulam, as the 2nd respondent in the writ petition, when he alleges that the minor child is in the custody of the 3rd respondent, whose address is shown as at Alappuzha. The Station House Officer or any other Police Officer having jurisdiction at the place of residence of the 3rd respondent is not arrayed as a party to the writ petition. Paragraph 25 of the statement of facts contains a vague averment that the petitioner reasonably apprehends and believes that respondents 3 and 4 and the minor child are presently residing somewhere in Ernakulam District. During the course of arguments, on a query made by this Court, the learned Counsel for the petitioner submitted that, as stated in paragraph 29 of the statement of facts, the petitioner is required to return to the United Arab Emirates (UAE) today (25.05.2026).

                  Having considered the pleadings and materials on record and the submissions made at the Bar as discussed above, we find no ground to prima facie hold that the alleged detenue is under the illegal confinement of respondents 3 and 4, for the purpose of issuing a writ of habeas corpus. Therefore, the writ petition stands dismissed; however, without prejudice to the right of the petitioner to prosecute Crl.M.P.No.03 of 2026 in G.O.P.No.909 of 2024 pending before the Family Court, Vatakara, raising appropriate legal and factual contentions. Consequently, I.A.No.2 of 2026 filed by the petitioner to amend the prayers in the writ petition also stands dismissed; however, without prejudice to the above right of the petitioner.