Habeas Corpus Maintainable In Illegal Detention Of Child By Parent, Can't Be Used To Enforce Foreign Court's Order: MP High Court
The Madhya Pradesh High Court has held that the extraordinary power of the writ of Habeas Corpus can be availed in exceptional circumstances where the detention of a child by a parent or other person is found to be illegal but it cannot be used for mere enforcement of a foreign court's order.
The petitioner father, approached the court alleging that his wife unlawfully and wrongfully removed their daughter from his custody. He sought repatriation of the child to Canada in accordance with the orders of the Canadian Family Court as her entire upbringing has been in North America.
The division bench of Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi held,
"A writ of Habeas Corpus cannot be used only for mere enforcement of the direction given by foreign Court and same is one of the facts to be considered and the extra ordinary power of writ of Habeas Corpus can be availed in exceptional cases where the detention of a child by parent or others is found to be illegal and without any authority of law where the original remedy provided by the law is either unavailable or ineffective".
The father further claimed that he had made several attempts to save the family, but the mother repeatedly deprived him of his legal right to stay with his daughter.
The wife, however, objected to the maintainability of the writ of Habeas Corpus, citing Vishnu Gupta vs State of MP. In Vishnu Gupta Case, a coordinate division bench had dismissed a habeas corpus petition filed by a father based in the USA, seeking the custody of his minor son, noting that the father has an alternate remedy in the form of sections 13 & 14 of the CPC.
The bench however rejected wife's objection to maintainability of husband's habeas corpus plea and said that the high court in Vishnu Gupta had considered the scope of the petition under Article 226 of the Constitution of India in the nature of Habeas Corpus.
The court thus held that the writ of Habeas Corpus in the matter of custody of a minor child is maintainable, in the light of the Supreme Court judgments.
"The Court, while passing the writ of Habeas Corpus, will examine whether the welfare of the child requires that the present custody should be changed and child should be left in the care and custody of somebody else," it added.
The court further underscored that the "paramount consideration while exercising the writ of Habeas corpus for the change of custody of a child will be the welfare of the child".
With the observations above, the matter was listed for October 10, 2025.
Case Title: SM v State of Madhya Pradesh (WP-22416-2024)
For Husband: Advocates Prabhijeet Jauhar, Firoza Daruwala and Rosemary Raju
For Wife and Child: Senior Advocate A.S.Garg with Advocates Raunak Choukse and Archit Jaykar
For State: Government Advocate Bhuwan Gautam