Unable to issue writ of habeas corpus in child custody cases between husband and wife: Orissa High Court


The Orissa High Court refused to issue the order habeas corpus in favor of a woman who claimed custody of her minor child from her husband.

A dividing bench of Judges Sangam Kumar Sahoo and Murahari Sri Raman has largely taken note of the observations made by the Supreme Court in Tejaswini Gaud & Ors. against Shekhar Jagdish Prasad Tewari & others., while discouraging the emission of habeas corpus to grant custody of a child from one parent to the other.

In this case, the Supreme Court ruled that habeas corpus the procedure is not intended to justify or examine the lawfulness of police custody. This is a prerogative writ which is an extraordinary remedy and the writ is issued when, in the circumstances of the particular case, the ordinary remedy provided by law is not available or is ineffective; otherwise, a writ will not be issued. In matters of child custody, the power of the High Court to grant the summons is limited only in cases where the detention of a minor by a person who is not entitled to his legal custody.

He further noted,

“In matters of custody of children, the ordinary remedy is only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be. In cases arising from proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides in the area over which the court exercises such jurisdiction.There are important differences between the investigation under the Guardians and Wards Act. guardians and wards and the exercise of powers by a court of writs which is summary in nature. What is important is the welfare of the child. In the magistrate’s court rights are determined only on the basis of affidavits.Where the court finds that a detailed investigation is necessary, the court may decline to exercise extraordinary jurisdiction and order the parties to apply to the civil court.This is only in cases exceptional than the rights of parties to custody of the minor will be determined in the exercise of extraordinary jurisdiction over an ion for habeas corpus.”

In view of the above legal situation, the High Court concluded,

“Given the rapport established in the above-mentioned case and in the factual scenario, when the alternative effective remedy is available, we are not inclined to hear the petition in writ which is in the nature of habeas corpus. However, the applicant is at liberty to pursue an appropriate remedy before an appropriate body in accordance with the law.”

Accordingly, the motion was dismissed.

Case title: Koushalya Das c. State of Odisha & Ors.

Case no: WPCRL No. 66 of 2022

Order dated: sevene June 2022

Koram: Sangam Kumar Sahoo and Murahari Sri Raman, JJ.

Counsel for the Applicant: Mr. PK Das, lawyer

Counsel for Respondents: Mr. AK Sharma, Additional Government Counsel

Quote: 2022 LiveLaw (Ori) 103

Click here to read/download the order


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