Orissa high court dismisses father's habeas corpus plea for custody of minor son

CUTTACK: The Orissa High Court dismissed a habeas corpus petition filed by a father seeking custody of his five-year-old son, ruling that since the child’s custody with his maternal aunt is not unlawful, the proper remedy lies before a civil court under guardianship laws.The division bench of Chief Justice Harish Tandon and Justice M. S. Raman held that while habeas corpus petitions in child custody matters are maintainable, the extraordinary jurisdiction must be exercised with caution, keeping the welfare of the child as the paramount consideration.“Even though the writ petition in the nature of habeas corpus is maintainable, not only for production of the minor child but also for the purpose of custody, yet it has to be decided on the basis of the facts emerged from the record,” the Bench observed in a recent judgment, addressing the scope of habeas corpus.

However, the Judges underscored that where custody does not appear illegal and the core issue concerns whether the child’s welfare would be served by shifting him from a familiar environment, the high court should not usurp the jurisdiction of civil courts.The father moved the high court alleging that after his wife’s untimely death, he had requested the child’s maternal relatives to stay with him in Chennai to assist in caregiving.

Instead, he claimed, they took the boy to Odisha without his consent. The Child Welfare Committee (CWC), Balasore, had earlier directed the child’s production. The dispute reached the Supreme Court through a Special Leave Petition, where the apex court ordered the child’s appearance before the CWC on January 12, 2026, permitted interaction with the father, but restrained the CWC from passing custody orders.Referring to remedies under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, the bench said civil courts are better equipped to undertake a detailed inquiry into welfare considerations.Noting that the child’s custody with the maternal aunt flowed from orders in separate proceedings, the high court concluded it “can never partake a character of unlawful and/or illegal custody,” and dismissed the petition on February 23, leaving it open for the father to seek relief before the appropriate civil forum.