CAV Judgment

N.S. Sanjay Gowda, J.

[1] Whether the custody of the children, which was entrusted by the father to his parents and his siblings, can be construed as illegal confinement entitling issuance of a writ of habeas corpus, is the question to be considered in this writ petition.

[2] The facts which are not in dispute, and which can be ascertained from the pleadings, are as follows:-

[3] The petitioner, Kedar Ghanshyam Parekh (hereinafter referred to as "the father"), had married Vaibhavi Gandhi and out of this wedlock, two children, namely Ekraj and Trayaakshi, who are now 14 and 9 years respectively, were born.

[4] Unfortunately, since differences arose between the father and said Vaibhavi Gandhi, legal proceedings were initiated for dissolution of the marriage, and a decree of divorce by mutual consent was secured on 07.08.2023.

[5] Under this decree of divorce, it was agreed by the father and Vaibhavi Gandhi that the father would retain the custody of the two minor children. Thus, under the decree of divorce, the father secured the custody of his two minor children from his first wife, Vaibhavi Gandhi.

[6] The father avers in this petition that one year and three months after the dissolution of his earlier marriage, he married one Divya Vaidya in the month of November 2024. He admits in the petition that after the marriage, he moved to a rented place, thereby meaning that until then, he was staying with his parents and sisters (who are admittedly unmarried). In fact, the specific averment made by the petitioner in the writ petition are as follows:-

          "Thereafter the present petitioner got Married with the Divya S Vaidya on 02/11/2024 and the present petitioner has shifted to the rented place mentioned in the title clause and on the suggestion of the Family Friends and relatives the Kids continued to stay with the respondents no. 3 to 6 and the present petitioner used to visit daily and used to pick up and drop from the school and thereafter used to take them for the Outing and to the new House so that they can comfortable with their Mother and Kids were also happy with their New Mother and started coming to the New Home and spend quality time with Her and in the evening the present petitioner used to drop them to Respondents No. 3 to 6. Later on they have also gone for the Vacation Trip to Kashmir in February 2025."

[7] As could be seen from the abovesaid averment, the father categorically admits that he accepted the suggestion of his family friends and relatives and decided to permit his two children to continue to stay with his parents and his two unmarried sisters. In other words, the father does not dispute the fact that he voluntarily handed over custody of his two minor children to his parents and to his sisters. This is obviously because he had married for the second time and had decided to stay with his second wife at a rented place.

[8] It may be pertinent to state here that Divya Vaidya was also earlier married and out of her earlier marriage, she has two children, one of whom is in a boarding school and the other is residing with her.

[9] It is also averred in the written petition that on 21.04.2025, the younger child, i.e., the daughter, was admitted to the new school G. D. Goenka International School, and that she attended said school till 07.05.2025. The said school was closed for vacation from 08.05.2025 to 08.06.2025. It is alleged that during the vacation, the father's parents and his sisters started nagging him about the distance and timing of the school and suggested that the father come to stay with them. Since they started nagging him about the distance and timing of the school, the father suggested that his parents and his sisters come and stay with them. It is also averred that the father would arrange for another apartment for them to reside separately, but this offer was refused.

[10] It is alleged that on 08.06.2025, when the father went to pick up his daughter from the school, he was informed that she was not keeping well and had changed the school as she was not comfortable in the school. It is averred that from 18.06.2025, the father has not been allowed to meet his children and he was also not allowed into the house of his parents and sisters, and that a threat was laid out to him.

[11] These undisputed facts indicate, as stated earlier, that the custody of the two minor children was handed over to the grandparents and the siblings pursuant to the marriage of the father for the second time, and they did in fact continue to reside with them till the younger daughter was admitted to G. D. Goenka International School in April 2025. In other words, right from the petitioner's marriage till his divorce in the year 2023 and till April 2025, both the children stayed with their grandparents and their aunts, and it is only in the month of April that the younger daughter was admitted to a different school.

[12] While the father contends that his two children have been illegally detained and places reliance on a few photographs to indicate that his daughter is being ill-treated by his parents and the attendance of his daughter in the school to which she is admitted was irregular, the parents and the sisters contend that the father is not the appropriate person to take care of the welfare of the two minor children. Assertions are made that the father was irresponsible and though he was a trained physiotherapist, he had stopped working and had become an alcoholic and a heavy smoker, as a result of which his earlier marriage had failed and resulted in a divorce. Photographs are also produced to indicate the manner in which the father was taking care of himself. It is also averred in the reply that the father had taken Diksha of Aghori Panth and has been studying Tantra Mantra Vidya for some years. Photographs to establish this assertion are also produced. It is also sought to be contended that the father was in the habit of abusing both his children in his drunken state and that the two children were, in fact, scared of even interacting with the father, let alone having any relationship with him.

[13] A specific averment is made in paragraph 22 of this affidavit that the father forcibly entered his parents house on 26.08.2025 and created a ruckus which scared the children and traumatized them. An affidavit was also filed on 16 th October 2025, for placing a video of the said incident on record by producing a pen drive and it was stated in the affidavit that it was being produced to place on record the aggressive behaviour of the father when he had gone to his parents house, which caused trauma to the children. In our view, it would be unnecessary to record any observations about the father's behavior recorded on the video as the averments made by either of the parties is sufficient to decide the lis.

[14] It may be pertinent to state here that after the reply was filed and the matter was heard, liberty was given to the father to file a rejoinder to the reply.

[15] A Rejoinder has been filed by the original petitioner. The relevant portions of the same are extracted below:-

          "6. That the averment made in the para no. 5 is that the "Both the Children have been continuously residing with and cared for by respondent no. 3 to 6 since birth. Their education, medical care and upbringing has been entirely borne by the Respondents" is the supersession of Facts. As previously the present petitioner was also residing with the respondents in the joint family along with her 1 st wife and corpus together and they jointly use to take care of Children's and all the expenses including the household expenses and every month he used to give money in cash to the present respondents. Further all the Allegations regarding the conduct of the present petitioner are merely general type of allegation made to influence this Hon'ble Court.

          That as per the Averments made in the para no. 10.2 that the both the children have been continuously residing with the Respondent no. 3, 5 and 6, who have been solely responsible for their upbringing and all the expenses towards the schooling, tuition, and other necessities have consistently been borne by the Respondent no. 5 and 6 are totally false and fabricated. As a matter of Facts since the Birth the Present petitioner was staying with the Respondent No. 3 to 6 in the Joint Family until he got married second wife and has shifted to the rented place mentioned in the title clause and on the suggestion of the Family Friends and relatives the Kids continued to stay with the respondents no. 3 to 6 for the limited period as renovation and furniture work was on progress and the present petitioner use to visit daily and used to pick up and drop from the school and thereafter used to take them for the Outing and to the new House so that they can comfortable with their Mother and Kids were also happy with their New Mother and started coming to the New Home and spend quality time with Her and in the evening the present petitioner used to drop them to Respondents No. 3 to 6. Further all the expenses of the Children and petitioner parents were taken care by the present petitioner and he use to give the money in the cash for the Schooling and other expenses of the Kids and Family member and all the Payment receipt Annexed by the respondents are paid in cash and no where its is written that paid by whom and cannot be considered to be paid by the respondent no. 5 and 6.

          Further the averments made in the Para 10.5 that the present petitioner has supressed that the second wife has two children and one of the Kid name Aryan is been sent to the Hostel at Chinmaya Vidahalya Kochi (He is Studying in Chinmay International Residential School and enjoys the 15 th Ranks among the International School in the World) and younger son Advaith is studying in GD Goenka School Surat. As matter of the fact the elder son Aryan was studying in hostel previous to the marriage and was admitted to the hostel prior to the marriage of the present petitioner and for his betterment and all round development and there is no relevance with the present case as it is not the case for the custody of the children of Second Wife."

[16] These averments would thus indicate that the father and his children were all along staying with his parents and his siblings even during the course of his first marriage and the expenses towards the upkeep of the children were borne jointly by the father, his parents and the siblings, thereby meaning that the parents and the siblings were taking the responsibility of the children from the time of their birth.

[17] These averments also indicate that the father voluntarily permitted his children to be with his parents and siblings after his second marriage. Since he admits that the receipts from payment of the fees of the children were in possession of his parents and he seeks to explain this by saying that he had paid cash to his parents and siblings for the payments of their fees, it would nevertheless indicate that his parents and siblings were the ones who actually paid the fees to the school.

[18] Lastly, these averments would indicate that a conscious decision was taken to admit the elder son of the second wife to a hostel before the father contracted his second marriage.

[19] In other words, it can be safely concluded that the father, on contracting his second marriage, decided that his two children would stay with his parents and siblings who were taking care of the children's daily needs. Further, the second wife of the father decided to admit her elder son to a hostel before her second marriage and had decided to have only her second child with her.

[20] In light of the fact that the dispute related to the custody of two minor children vis-à-vis the father, his parents and siblings, on presentation of this petition in the month of July 2025, this Court on 21.08.2025, interacted with the two children and found that the children were comfortable in the custody of the grandparents and their aunts. This Court, taking into the fact that the minor children were not inclined to join the father, as an interim measure, provided visitation rights to the father. At the same time, this Court also referred the matter to mediation in order to explore the possibility of an amicable settlement.

[21] Unfortunately, mediation was unsuccessful and the mediator observed that both children were attached to their grandparents and aunts, and despite a prolonged interaction with all the parties concerned, there was a deadlock.

[22] Thereafter, applications have been filed seeking issuance of a direction to allow the corpus to attend the school on regular basis.

[23] An application has also been filed to interact with the minor daughter and to ascertain as to whether she was willing to continue studies at the G. D. Goenka International School, Surat or at the H. M. B. Sardar High School where her brother Ekraj was studying.

[24] Thereafter, this Court once again interacted with the two minor children and also interacted with the father and his second wife. During this interaction, both the children unequivocally stated that they do not wish to stay with their father and that they were comfortable with their grandparents and aunts. It is also forthcoming from them that, ever since they were born, they had been residing with their grandparents and aunts and that they had all along been raised by them. They also made certain statements against the father, which we do not wish to place on record given the sensitivity of the matter.

[25] Be that as it may, what emerges from our interaction is that the two minor children, who were admittedly staying with the grandparents and their aunts with the consent of the father, are categorical in stating that they are comfortable staying with their grandparents and aunts and are happy to continue residing with them.

[26] However, the father and his second wife desire that the custody of the two children be handed over to them, on the obvious premise that the father is the natural guardian and is entitled to take care of them.

[27] The legal position in such a situation relating to the custody of minor children would have to be stated.

[28] The Hon'ble Supreme Court in the case of Tejaswini Gaud and others versus Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 SCC 42 has held as follows:-

          "14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

          19. 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. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. 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. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, 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.

          20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

[29] This view has been accepted and reiterated in the case of Somprabha Rana and others versus State of Madhya Pradesh and others reported in (2024) 9 SCC 382. The following guidelines have been laid down:-

          "9. After having perused various decisions of this Court, the broad propositions of settled law on the point can be summarised as follows:

          9.1. Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy;

          9.2 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;

          9.3 Even if the High Court, in a petition of Habeas Corpus, finds that custody of the child by the respondents was illegal, in a given case, the High Court can decline to exercise jurisdiction under Article 226 of the Constitution of India if the High Court is of the view that at the stage at which the Habeas Corpus was sought, it will not be in the welfare and interests of the minor to disturb his/her custody; and

          9.4 As far as the decision regarding custody of the minor children is concerned, 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."

[30] This view taken in Tejaswini Gaud (supra) has also been affirmed in another decision rendered to the Hon'ble Apex Court in the case of Nirmala versus Kulwant Singh and others reported in (2024) 10 SCC 595 in the following terms:-

          "27. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case."

[31] It is therefore clear from the above that the law is well settled that a writ of habeas corpus cannot be filed in order to secure the custody of children, more so when the custody of the children was lawfully with another.

[32] In the present case, as already observed above, it is admitted by the father that he voluntarily handed over custody of his two minor children to his parents and sisters. If the father of the two minor children had handed over or permitted his children to continue to reside with his parents and his aunts, it is obvious that the custody of the two children by the grandparents and aunts would have to be construed as being lawful.

[33] It is also obvious that the custody of the children was permitted to continue with the father's parents and his siblings only because the father had got married for the second time and the second wife also had two children from an earlier marriage. In other words, it is clear from the context of the present case that the father did not wish to be burdened with the upkeep of his two minor children and wanted the two children to be taken care of by his parents and siblings.

[34] Since it is clear that the custody of the two children by the grandparents and their aunts was an outcome of the consent of the father and was also lawful, it cannot be said in law that they have been illegally confined by their grandparents and aunts. It is therefore clear that the prayer for invoking the habeas corpus jurisdiction, which is a prerogative writ, is not maintainable.

[35] In order to issue a writ of habeas corpus, the Court must be satisfied that the custody complained of is illegal, i.e., without authority of law, or that the minor is being detained by a person not entitled to such custody. In the present case, the admitted position is that the father voluntarily entrusted the two children to the care of his parents and sisters, and said arrangement continued for a considerable period even after the decree of divorce and up to his second marriage. Such voluntary entrustment cannot, by any stretch, be construed as unlawful or unauthorised detention.

[36] It may also be pertinent to state here that Section 25 (25. Title of guardian to custody of ward.--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

          (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

          (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.) of the Guardian and Wards Act, 1890 which deals with the custody of minors, would permit the Court to order that a ward be returned to the guardian's custody only if the minor is unlawfully removed. In other words, the law recognizes that restoration of custody to a guardian would arise only if there is any kind of illegal detention of the minor. Since in the instant case, it is forthcoming that the custody of the two children is not only lawful but has been a result of a voluntary act by the father, the father cannot, as a matter of right, seek for restoration of the custody of his children.

[37] Having regard to the above facts, we are also of the opinion that the present petition would not be maintainable as a habeas corpus petition, since the custody of the children with their grandparents and aunts does not satisfy the threshold requirement of "illegal" or "unlawful detention".

[38] It may also be relevant to state here that even under Section 13 (13. Welfare of minor to be paramount consideration.--(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

          (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.) of the Hindu Minority and Guardianship Act, 1956, it is categorically declared that in the appointment of any person as guardian, the welfare of the minor shall be the paramount consideration. It is also made clear that no person would be entitled to guardianship merely by virtue of the provisions of the Act or of any law relating to guardianship, if the Court is of opinion that said guardianship would not be for the welfare for the minor.

[39] Since we are of the view that the father himself handed over custody of the two children to his parents and to his sisters as it was in the welfare of the minors, the father is estopped from contending that the welfare of the minors would be affected by their continued stay with his parents and his sisters.

[40] Even otherwise, on the material placed before us and on interacting with the minor children, it is evident that the welfare of the children lies in their continued stay with the grandparents and aunts with whom they have resided since birth and with whom they express comfort, stability, and emotional security. The father's status as natural guardian under Section 6 of the Hindu Minority and Guardianship Act does not, in itself, entitle him to custody when the welfare of the minors clearly points in another direction. Thus, on merits also, the petitioner has not demonstrated that disturbing the existing custody arrangement would be in the welfare of the children.

[41] Before parting with this case, it would be necessary to take note of one event relating to admission of minor daughter- Trayaakshi and pass appropriate orders.

[42] It is seen that minor daughter Trayaakshi, who was studying in HMB Sardar High School, Surat, was admitted to G.D. Goenka International school, Surat. However, having regard to the conclusion arrived at above regarding her staying with her grandparents along with her brother, the continuation of her education at G.D. Goenka International school, Surat would not be practical or feasible.

[43] We, therefore, direct the earlier school i.e. HMB Sardar High School, Surat, where minor daughter Trayaakshi was studying, to re-admit her and permit her to prosecute her studies there.

[44] We also direct G.D. Goenka International school, Surat to furnish the necessary school leaving certificate and such other documents which are required to facilitate her re- admission, directly to HMB Sardar High School, Surat, without insisting upon any formal request from the father or from the grandparents. This order is being passed in order to facilitate the continuation of study of Trayaakshi.

[45] For reasons stated above, the present writ petition cannot be entertained and the same is DISMISSED subject to the above direction.

[46] All pending civil applications stand consigned to records.