Rajasthan High Court Declines To Interfere With Mother's Custody Of Children, Notes Their Wish To Not Stay With Their Father

While disposing of a habeas corpus petition filed by a father, the Jaipur bench of the Rajasthan High Court refused to interfere with the mother's custody over the two minor children, in view of the court's interaction with the children and their wish to not stay with their father. 

A division bench of Justice Pankaj Bhandari and Justice Shubha Mehta in its order observed,"Coming to the wish of the children, from interaction with the children, it is revealed that both the children do not wish to stay with petitioner-their father. Children are aged 11 and 12 years and even after they have remained in custody of petitioner, their wish is to stay with their mother-respondent No.5". 

The Court highlighted that there were 700 pages of allegation and counter-allegations filed by the parties, however, keeping in mind the pending case before the family court, it observed that the merits and demerits of such allegations were subject matter of the case pending before the family court, and could not be considered by the high court in summary proceedings in a habeas corpus plea. 

On the mother's custody over the children the bench said, "As far as custody of the corpus is concerned, they are with respondent No.5-their mother and, therefore, the said custody cannot be said to be unlawful custody as held by the Apex Court in "Nithya Anand Raghavan vs. State of NCT of Delhi" (2017) 8 SCC 454". 

On the other hand, it was argued on behalf of the petitioner father that, the children were not getting the right atmosphere with the mother since she was allegedly leading an immoral and adulterous life. Furthermore, it was submitted that it was settled position of law that habeas corpus petition regarding custody of minor children was maintainable before the Court even when there was a pending family dispute.

After hearing the contentions, the bench rejected the preliminary objection opining that welfare of the child was of paramount consideration based on which the Court could entertain the habeas corpus petition.

Furthermore, taking into consideration the children's wish pursuant to interacting with them the court said, “We do not deem it proper to go into the merits and demerits of the allegations and counter allegations levelled in this case, as the same would be the Subject matter which has to be decided by the Family Court, after adducing of the evidence. We, therefore, do not find any force in the habeas corpus petition”

Accordingly, the petition was disposed of while stating that it was expected from the mother that she would not “poison the minds of children and would try to develop harmonious relationship between father and sons”.

The court also made it clear that the "Family Court will not be prejudiced" by the high court's order. 

Case Title: X v/s State of Rajasthan & Ors.

Citation: 2025 LiveLaw (Raj) 23

Counsels for Petitioner(s): Ms. Suruchi Kasliwal along with Mr. Vipin Sharma & Mr. Vikram Singh

Counsels for State: Mr. Rajesh Choudhary, GA-cum-AAG along with Mr. Aman Mr. Kumar, AAAG, Vivek Sharma, Addl. G.A., Mr. Gaurav Gupta, Asst. G.A., Mr. Amit Punia, Addl. G.A. & Ms. Neha Goyal

Counsels for Respondent No. 5 (Mother): Mr. Suresh Sahni along with Mr. Sudhir Jain, Mr. Himanshu Sogani, Mr. Parth Sharma, Mr. Monu Kumar, Mr. Saurabh Jain, Mr. Yatharth Agarwal, Mr. Aman Galav, Mr. Ram Mohan Sharma & Mr. M.S. Solanki

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