CUTTACK: The Orissa High Court has 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.
The two-judge bench of Chief Justice Harish Tandon and Justice MS Raman 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 bench gave the ruling while dismissing a habeas corpus petition recently filed by a father seeking custody of his five-year-old son.
The father moved the HC 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 care giving. Instead, he claimed, they took the boy to Odisha without his consent.
The child welfare committee (CWC) of Balasore had earlier directed the child’s protection. 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.
However, the bench ruled that since the child’s custody with his maternal aunt is not unlawful, the proper remedy lies before a civil court under guardianship laws.
“Since the custody of the child remained with maternal aunt on the basis of an order passed in different proceedings, it can never partake a character of unlawful and/or illegal custody. We, thus, do not find any grounds warranting interference in the instant writ petition,” the bench further ruled in its February 23 judgment, leaving it open for the father to seek relief before the appropriate civil forum.
Civil courts are better equipped to undertake a detailed inquiry into welfare considerations, the bench said referring to remedies under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890.
Addressing the scope of habeas corpus, the bench observed, “Even though the writ petition in the nature of habeas corpus is maintainable, not only for production of the minor child but for the purpose of custody, yet it has to be decided on the basis of the facts emerged from the record.”