Gujarat High Court
Mansukhbhai Anandbhai Navadiya vs State Of Gujarat on 5 December, 2025
NEUTRAL CITATION
R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025
undefined
Reserved On : 10/11/2025
Pronounced On : 05/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 16418 of
2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
and
HONOURABLE MR.JUSTICE D. M. VYAS Sd/-
==========================================================
Approved for Reporting Yes No
==========================================================
MANSUKHBHAI ANANDBHAI NAVADIYA
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MS MONALI H BHATT, APP for the Respondent(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Respondent(s) No. 4,5
==========================================================
CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE D. M. VYAS
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
1. Mansukhbhai Anandbhai Navadiya (hereinafter referred to as the 'father') has filed this petition seeking for a direction to the respondents to secure the custody of his minor son Harshvardhan and to produce him before the Court.
Page 1 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined
2. It is the admitted case of the father that he married the Komalben-mother (hereinafter referred to as the 'mother') on 8.12.2015 and out of this wedlock, a son, named Harshvardhan, was born on 25.8.2019 and he is presently aged about 6 years.
3. It is also admitted that the father and the mother got separated in the year 2022. The father, in fact, alleges that his wife (the mother) had deserted him.
4. It is also admitted by the father that the mother (his wife) has initiated multiple proceedings against him, namely proceedings seeking for maintenance under Section 125 of the Code of Criminal Procedure, applications for recovery of arrears of maintenance, applications under the Protection of Women from Domestic Violence Act and also a criminal complaint which has resulted in the registration of an FIR for the offences punishable under Sections 498A, 232, 506(2) and 114 of the Indian Penal Code read with Sections 3 and 7 of the Dowry Prohibition Act.
5. The father contends that respondent No.4- Bharatbhai Labhubhai Moradiya has forcefully taken his son and his wife and has detained them illegally.
6. From the petition's averment itself, it is clear that there is a marital discord between the father and the Page 2 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined mother and there are multiple proceedings between them relating to the grant of maintenance and there are also the criminal cases under the provisions of the D.V. Act and the Dowry Prohibition Act. Significantly, it is also admitted that the father and the mother are residing separately since the year 2022.
7. The mother has filed an affidavit-in-reply, in which she has also admitted that she and her son are living separately from the father since 2022. She has also contended that it was the father who had deserted her and her son, and he did not even bother to inquire about the welfare of the son though when they got separated, her son was only aged about 2 years.
8. It is also alleged that the father has not bothered towards the upkeep of the son and has not paid any sums as maintenance to her. It is specifically stated by the mother that the present petition seeking for the writ of Habeas Corpus is only to harass her and to ensure that she does not press her claim for maintenance.
9. The Apex Court in the case of Tejaswinin Gaud and others v. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 SCC 42, has held as follows:
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means ofimmediate release from an illegal or improper detention. The writ also extends its Page 3 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct Page 4 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."
This view of the Supreme Court has been reiterated in subsequent judgment rendered by the Apex Court in the case of Nirmala v. Kulwant Singh and others reported in (2024) 10 SCC 595. The Supreme Court has, in fact, has held thus:
"22. This Court in the case of Tejaswini Gaud and others (supra) after considering the earlier cases, observed thus:
"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether Page 5 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India."
23. It can thus be seen that this Court has held that the habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been held that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. It has further been held that in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others Page 6 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined was illegal and without any authority of law.
24. This Court further held that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It has been held that there are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. It has further been held that what is important is the welfare of the child. It has been further held that where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court.
25. In the facts of the said case, this Court found that the child being a minor, aged 1½ years, cannot express its intelligent preferences and in the facts and circumstances of said case, the father being the natural guardian was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.
26. The same legal position has been reiterated by this Court in the cases of Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba (supra) and Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and others.
27. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case."
10. In the light of the said declaration of law, a parent of a minor child does not have a legal right to invoke the extraordinary jurisdiction of the High Court under Art 226 and seek for a writ of habeas corpus and it is solely within the domain of the High Courts to the exercise the habeas corpus jurisdiction in their discretion and the Page 7 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined same would be dependent on the facts of each case.
11. However, learned counsel Mr. B.M. Mangukiya appearing on behalf of the father has strenuously contended that the Court is obliged to take into consideration the welfare of the child and a writ petition filed seeking for issuance of writ of Habeas Corpus would have to be entertained. He submits that the mother is in a live-in-relationship with respondent No.4 and this relationship would have a detrimental effect on the minor son. He submits that in view of this peculiar situation, this would be an appropriate case for this Court to issue a writ of Habeas Corpus to cause the production of his minor son and also to handover the custody of the child to him.
12. It is contended that the welfare of the child would be safeguarded if the custody of the child is given to him and on the contrary, if the mother is allowed to retain the custody of the child, it would be detrimental to the welfare of the child.
13. It may be pertinent to state here that after the conclusion of the oral arguments, though the Learned Counsel for the father had been granted time to file his written arguments, the learned counsel has not chosen to file any written arguments.
Page 8 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined
14. It may be pertinent to state that during pendency of this writ petition, this Court had directed the mother to appear personally along with her minor son. A co-ordinate Bench of this Court had interacted with mother and the minor son and had observed that the child was comfortable with the mother.
15. It must be stated here that the custody of a 6-year- old boy with his biological mother would always be lawful custody and can never be construed as an illegal confinement of a minor. In fact, it is not even the case of the father that the mother secured the custody of his son unlawfully or in violation of any provision or any order of the Court. The father in his petition merely asserts that his wife has deserted him way back in the year 2022. The mother, on the other hand, contends to the contrary, that the father had deserted her and her son. It is, therefore, clear that the custody of the biological mother of the 6 year old son cannot be termed as illegal or unlawful in any manner.
16. As observed above, the Apex Court has categorically held that the Habeas Corpus proceedings are not meant to examine the legality of the custody and it is a medium through which the custody of a child is addressed at the discretion of the Court. It has also been held that Habeas Corpus is a prerogative writ which is an extraordinary remedy and cannot be invoked for the mere asking of the Page 9 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025 NEUTRAL CITATION R/SCR.A/16418/2024 CAV JUDGMENT DATED: 05/12/2025 undefined either of the parents and the normal and proper remedy would be to approach the appropriate Court under the relevant law and make out a case that welfare is better served if the custody is handed over to the parent claiming custody.
17. In our view, the father has not made out any case that his son's custody with the mother is in anyway illegal or unlawful. As observed above, a coordinate bench has already noticed upon an interaction with the child that it is comfortable with the mother and, it is therefore clear that the welfare of the child is not at risk. There is, thus, absolutely no justification for entertaining this writ petition. The petition is, therefore, DISMISSED. Notice is discharged.
18. It is needless to state that it would be always open for the father to initiate appropriate proceeding(s) under the relevant law seeking for the custody of his minor son.
Sd/-
(N.S.SANJAY GOWDA,J) Sd/-
(D. M. VYAS, J) OMKAR Page 10 of 10 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Dec 05 2025 Downloaded on : Sat Dec 20 00:42:39 IST 2025