Gujarat High Court
Dipika D/O Vijaybhai Patel W/O. ... vs State Of Gujarat on 19 August, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 6186 of
2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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DIPIKA D/O VIJAYBHAI PATEL W/O. HARDIKKUMAR PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR JAYDEEP H SINDHI(9585) for the Respondent(s) No. 4,5
NOTICE NOT RECD BACK for the Respondent(s) No. 2,3
MS JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 19/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Rule returnable forthwith. With the consent of the learned advocates for the parties, the matter is taken up for final hearing today.
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2. We have heard Mr. Zubin F. Bharda, the learned advocate appearing for the petitioner, Ms. Jirga Jhaveri, the learned APP appearing for the respondent State and Ms. Jaydeep H. Sindhi, the learned advocate appearing for the respondents no. 4 & 5.
3. By way of the present writ petition, under Article 226 of the Constitution of India, the petitioner herein - Dipika D/o Shri Vijaybhai Patel and W/o Shri Hardikkumar Patel has prayed for a writ of Habeas Corpus seeking production of her daughter Kia Patel, aged about 13 years, from the illegal confinement of respondents no. 4 & 5 - the grandparents of minor Kia.
4. It is the case of the petitioner Dipika Patel that, her minor daughter Kia has been kept under illegal confinement by respondents no. 4 & 5 and that, they failed to hand over the custody of the minor child to the petitioner after the death of their son Rinkeshkumar, i.e. Page 2 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined petitioner's husband - Kia's father. It is the case of the petitioner that, she being the mother is now Kia's sole natural guardian after the demise of her ex-husband and father of Kia, namely, Rinkeshkumar Patel, with whom, Kia was residing as per the settlement and understanding arrived at in the deed of customary divorce dated 01.12.2021.
4.1 It was initially the case of the petitioner that, the respondent nos. 4 & 5 were whiling away time on one or the other pretext and were not handing over the custody of minor Kia to the petitioner. It was further the case of the petitioner that, they even restricted her daughter's movements and confined her in a place without access to the petitioner. Consequently, the petitioner lodged a complaint with Navsari Rural Police Station on 28.03.2025. It is her case that, the respondent no. 3 failed to discharge his obligation as a police officer and therefore the petitioner was compelled to file the present petition seeking production of her minor daughter Kia. Page 3 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025
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5. Notice was issued on 01.05.2025 by which the parties were relegated to mediation proceedings before the District Legal Services Authority at Navsari. We were informed that the said attempt of mediation failed. In view thereof, during the course of hearing, we interacted at length with the respective parties i.e. the petitioner Dipika Patel, the minor corpus Kia Patel and the respondent nos. 4 & 5 who are the paternal grandparents of minor corpus.
5.1 On 07.08.2025, when we interacted with minor corpus Kia, she stated that she wished to join her mother
- the petitioner herein, and accordingly, we recorded her will in the order so passed. Our order dated 07.08.2025 reads as under:
"1. Matter is taken up for hearing at 2.30 pm in the chamber today in presence of Mr. Zubin Bharda, the learned advocate appearing for the petitioner and Mr. Jaydeep Sindhi, the learned advocate appearing for respondents no. 4 & 5 and Ms. Jirga Jhaveri, the learned APP appearing for the respondent State. The petitioner herein -Page 4 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025
NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined Dipika Patel is present with her husband Hardikkumar Patel. The respondent no. 4 - Chandrakantbhai Patel, the respondent no. 5 - Manjulaben Patel as well as the corpus - Kia Patel are also present.
2. The matter is taken up in the chamber today mainly to record the will of the corpus Kia Patel who is a minor, aged about 13 years, before we pass the final order.
3. The corpus Kia, on her own will, states that she wishes to join her mother - the petitioner herein. She also states on her own volition that she would continue her studies in her current school i.e. Shree Vallabh Ashram's MCM Kothari International Girls' Residential School. In view of the fact that she has been admitted in the said boarding/residential school for the academic year 2025-26, the same may be continued for this academic year. The respondents no. 4 & 5 also have no objection if the custody is handed over to the petitioner herein. At the same time, they have stated that the petitioner Dipika Patel should not harass them i.e. respondents no. 4 & 5 and permit the corpus Kia to visit them from time to time to which the petitioner Dipika states that she has no objection. Since the corpus wishes to go with her mother - petitioner herein from the court, recording the consent of the respective parties, the same is permitted. The petitioner undertakes to drop corpus Kia at Shree Vallabh Ashram's MCM Kothari International Girls' Residential School upon completion of the holidays on 10.08.2025 as per the school calendar.
4. Shri Kush Sakaria, Trustee of Shree Vallabh Ashram's MCM Kothari International Girls' Page 5 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined Residential School is also present before us today. The school/institution to add the name of petitioner Dipika Patel as the legal guardian of minor Kia. However, the institute to act in accordance with its rules and regulations.
5. Post the matter for further hearing on 12.08.2025. The final order shall be passed on the next date of hearing."
5.2 Today, before passing the final order with directions, we deem it fit to refer to the deed of customary divorce dated 01.12.2021 executed between the petitioner and her ex-husband - deceased Rinkeshkumar Patel, before filing the divorce proceedings by way of mutual consent. The parties approached the Family Court, Tapi at Vyara by preferring an application for divorce by mutual consent produced at Annexure 'C' to the petition. However, in the interregnum, Rinkeshkumar Patel expired on 28.02.2022. The petitioner thereafter married Hardikkumar Patel on 22.08.2022. The marriage certificate is duly produced at Annexure 'B' to the petition.
6. We have also perused the affidavit-in-reply filed on Page 6 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined behalf of respondent nos. 4 & 5 wherein they have stated that their main apprehension is about the well-being and upbringing of minor Kia who resided with them till standard 7, not being taken care of by the petitioner. Kia is now in standard 8 and they i.e. the grandparents have admitted her in a boarding school namely Vallabh Ashram, Killa Pardi, Valsad wherein, the yearly fees is to the tune of Rs.3.94 lakhs and if other expenses are included, the same surpasses more than Rs.5 lakhs a year. It is also mentioned in the affidavit-in- reply that, the petitioner mother had no source of income and was surviving on the farming income of her current husband. In such circumstances, therefore an apprehension has been raised by them as to how the petitioner will be able to maintain the welfare and education expenses of the minor corpus Kia. It is further stated that, even in the mediation meeting, the respondent nos. 4 & 5 had shown their willingness to hand over the custody of the child, but, in return, they had demanded a written undertaking by the husband and in-laws of the petitioner herein, that Page 7 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined the welfare of minor Kia shall be ensured. 6.1 We have also perused the affidavit-in-rejoinder filed by the petitioner wherein, she has stated that her present husband is an agriculturist and owns agriculture land in village Khambhla, Valod Taluka, Dist. Tapi admeasuring 1-82-57 hectares and that, her husband is self sufficient. It is further mentioned in the rejoinder that, he owns an independent residential house in Padar Faliya on Orna Road, Village Sevni, Ta. Kamrej, Dist. Surat. She has produced on record as RA-1 copies of the village Form No. 7 with respect to the said land to substantiate the aforesaid. She has also placed on record income tax returns filed by her, for the Assessment Year 2024-25 as RA-2 to suggest that, she has sufficient income of her own to take care of her daughter Kia. She has further stated that, after her ex-husband expired, she was on good terms with the respondents no. 4 & 5. She willingly signed the property documents. She was at that time informed that, upon signing such documents, the custody Page 8 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined of the minor daughter Kia would be handed over to her. She has reiterated in the rejoinder that, she as the natural guardian of minor Kia is legally entitled for her custody, her ex-husband Rinkeshkumar Patel having expired.
7. Considering the facts of the present case, the following are not in dispute:
(A) That, by virtue of deed of customary divorce dated 01.12.2021, the custody of minor Kia was with Rinkeshkumar, the ex-husband of the petitioner.
(B) That, the petitioner and Rinkeshkumar -
petitioner's ex-husband and father of Kia had also preferred a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, which was disposed of by the concerned court, owing to the demise of Rinkeshkumar, during the pendency of the said petition.
(C) Rinkeshkumar expired on 28.02.2022. Page 9 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025
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8. In light of the facts as stated hereinabove, the parties are governed by Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The same reads as under:
"6. Natural guardians of a Hindu minor.-- The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a)in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
*** Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a)if he has ceased to be a Hindu, or
(b)if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--
In this section, the expression "father" and "mother" do not include a step-father and a step- mother.
8.1 As provided in Section 6(a) of the Hindu Minority Page 10 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined and Guardianship Act, in absence of the father of the minor child, her mother shall be the natural guardian and thus after father, the custody of the child goes to the mother. The fact that the mother is remarried is no disqualification under the Act, and she can act as a natural guardian of the minor. The interest of the minor in a joint/ancestral family property, if any, is to be dealt with as per the provisions of Hindu Law relating to the same. If the minor holds a separate property, such property cannot be dealt with, by the natural guardian as per her wish, without the permission of the court.
9. We also deem it fit to refer to certain judicial pronouncements on the issue:
(A) In the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others [(2019) 7 SCC 42], the Hon'ble Apex Court, in the relevant paragraphs has held as under:
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording Page 11 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined an effective means of immediate release from an illegal or improper detention. The writ also extends its 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, Page 12 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined 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 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."
(B) In the case of Nirmala vs. Kulwant Singh & Page 13 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined Others [AIR 2024 SC 2344], the Hon'ble Apex Court has held as under:
"12. 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 was illegal and without any authority of law.
13. 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.
16. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a Page 14 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined 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."
(C) In the case of Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and Others [(2023) 12 SCC 472], the Hon'ble Apex Court has observed as under:
"85. The writ of Habeas Corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held by this Court in Mohd. Ikram Hussain v. State of Uttar Pradesh and others, 1964 AIR(SC) 1625 and Kanu Sanyal v. District Magistrate, Darjeeling, 1973 2 SCC 674. The observations made by a Constitution Bench in the case of Kanu Sanyal (supra) with regard to the nature and scope of a writ of Habeas Corpus are being extracted below :
"4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody Page 15 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice-immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody- together with the day and cause of his being taken and detained to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes (supra), "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end."
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86. The exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
87. The object and scope of a writ of Habeas Corpus in the context of a claim relating to the custody of a minor child fell for the consideration of this Court in Nithya Anand Raghavan (supra) and it was held that the principal duty of the court in such matters should be to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.
88. Taking a similar view in the case of Syed Saleemuddin v. Dr. Rukhsana and others, 2001 5 SCC 247, it was held by this Court that in a Habeas Corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus :
"11. ... it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be Page 17 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court "
89. The question of maintainability of a Habeas Corpus petition under Article 226 of the Constitution of India for the custody of a minor was examined by this Court in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, 2019 7 SCC 42, and it was held that the petition would be maintainable where the detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in exceptional cases where the ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows :
"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its 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 Page 18 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined 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 Page 19 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined 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 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."
98. In the context of consideration of an application by a parent seeking custody of a child through the medium of a Habeas Corpus proceeding, it has been stated in American Jurisprudence, 2nd Edn. Vol. 39 as follows :
" An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment."Page 20 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025
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99. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child."
10. Having considered the aforesaid principle as laid down by the Apex Court, the facts of the present case are on a better footing inasmuch as the writ petitioner is the natural guardian of minor Kia, the petitioner's ex- husband having expired on 28.02.2022. The grandparents i.e. respondent nos. 4 & 5 also, do not have Page 21 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined any objection in handing over the custody of minor Kia to the petitioner, if Kia is permitted to meet them at regular intervals. They have accorded their consent in this regard. Even minor Kia has expressed her willingness to join the petitioner. This, in our opinion, is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India, in absence of any triable issues.
11. In view of the above and with the consent of the learned advocates for the respective parties, the petitioner as well as the respondents no. 4 & 5 in particular, by way of extraordinary jurisdiction under Article 226 of the Constitution of India, we allow the prayers prayed for in the present petition and hand over the custody of minor corpus Kia to the petitioner Dipika Patel - mother of the corpus with the following directions:
(a) The writ petitioner to continue the studies of minor Kia Patel for the academic year 2025-26 at Shree Vallabh Ashram's MCM Kothari International Page 22 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined Girls' Residential School.
(b) The school namely Shree Vallabh Ashram's MCM Kothari International Girls' Residential School to enter the name of the petitioner herein i.e. the mother of corpus Kia Patel in the school records as the legal guardian, if the same is not figuring in the school records.
(c) The school shall permit the petitioner to attend the Parent-Teacher Meeting and all other events/functions that may be held in the school where, the presence of parents is required.
(d) The petitioner herein to permit the minor corpus Kia to meet her paternal grandparents i.e. respondent nos. 4 & 5 as and when she wishes to meet them. The parties may mutually agree to a time frame when minor Kia can visit the paternal grandparents. Efforts should be made by minor Kia Page 23 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025 NEUTRAL CITATION R/SCR.A/6186/2025 JUDGMENT DATED: 19/08/2025 undefined to physically visit the paternal grandparents i.e. respondent nos. 4 & 5, but in rarest of rare cases, if she is not in a position to visit them, the petitioner and the respondent nos. 4 & 5 shall mutually decide a time when Kia can meet/talk to the grandparents virtually.
(e) The petitioner and her husband Hardikkumar Nitinbhai Patel shall ensure that, the welfare and well-being of minor Kia is given utmost priority and they shall take the reins of her happiness.
12. With the aforesaid directions, the present writ petition is allowed. Rule is made absolute accordingly.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) DIVYA Page 24 of 24 Uploaded by DIVYA PILLAI(HC00199) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 21:27:06 IST 2025