Writ of Habeas Corpus Not a Remedy in Child Custody Disputes, Rules HC DB

In a cross border child custody tussle involving a minor relocated from Thailand to India, the Himachal Pradesh High Court was confronted with a father’s urgent plea for a writ of habeas corpus to secure his daughter’s custody from her mother in Dharamshala. The petition raised a critical procedural question: can a parent invoke the extraordinary writ jurisdiction of the High Court in a custody dispute when the child’s whereabouts are known and an alternative statutory remedy exists? The Court’s answer would turn on the limits of habeas corpus in matrimonial conflicts.

The controversy began when the mother travelled to India with the eight year old child in October 2025 and, according to the father, never returned to their Bangkok residence. The father alleged that he discovered the child’s belongings missing and claimed repeated efforts to contact the mother had failed. Seeking immediate production of the minor and restoration of her schooling, he invoked the Supreme Court’s ruling in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari to argue that habeas corpus was maintainable in child custody matters. However, the Bench recalled its earlier ruling in Saurav Rattan v. State of Himachal Pradesh, where it had declined similar relief between warring parents, emphasizing that such disputes are best adjudicated by the Guardian Court after evidence is led.

The High Court drew heavily from Apex Court precedents, including Sayed Saleemuddin v. Dr. Rukshsana and Nithya Anand Raghavan v. State (NCT of Delhi), reiterating that habeas corpus is an extraordinary remedy, not a substitute for regular custody proceedings. Quoting Tejaswini Gaud, the Bench stressed, “Habeas corpus is a prerogative writ which is an extraordinary remedy… In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child… was illegal and without any authority of law.”

In the present case, the Court noted that the mother’s location in Dharamshala was specifically disclosed, and the dispute was plainly between parents, not a case of unlawful detention by a third party. “It would not be for the Writ Court as such to deal with the issue of Habeas Corpus, once the dispute is between husband and wife,” the Bench observed. Consequently, the petition was dismissed, with liberty granted to approach the competent Guardian Court.

Case Title: Himanshu Dilip Kulkarni Vs. State of Himachal Pradesh & Ors.

Case No.: Cr. WP No. 7 of 2026

Coram: Hon’ble. Chief Justice. G.S. Sandhawalia, The Hon’ble. Justice Bipin C. Negi, 

Advocate for the Petitioner: Adv. Aashutosh Srivastava, Adv. Vishwajeet Singh,

Advocate for the Respondent: Adv. Rakesh Dhaulta,

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