Introduction:

In Shashikanta Majhi v. State of Odisha & Ors., WPCRL No. 10 of 2026, decided on February 23, 2026 and reported as 2026 LiveLaw (Ori) 21, the Orissa High Court was called upon to determine a deeply emotional yet legally intricate question—can a writ of habeas corpus be invoked to reclaim custody of a minor child when the custody is not prima facie illegal? The petitioner, represented by Mr. Jyoti Prakash Patra, Advocate, sought the custody of his five-year-old child from the maternal relatives, while the State was represented by Ms. Aishwarya Dash, Addl. Standing Counsel, and the private opposite parties were represented by Mr. Sukanta Kumar Dalai, Advocate. The Division Bench comprising Chief Justice Harish Tandon and Justice Murahari Sri Raman delivered a significant ruling delineating the contours of writ jurisdiction in child custody disputes, emphasizing that habeas corpus cannot become a parallel remedy to bypass detailed adjudication by civil courts when custody is not unlawful.

Factual Background:

The factual matrix unfolded against the tragic backdrop of a premature death. The petitioner’s wife passed away, leaving behind a minor child aged five years. According to the petitioner, in the aftermath of this personal loss, he requested the child’s maternal uncle and aunt—arrayed as opposite party nos. 5 and 6—to take care of the child temporarily by residing in Chennai. However, the maternal relatives allegedly brought the child back to Odisha and, despite repeated requests, refused to return custody to him.

Aggrieved by what he perceived as unlawful retention of his child, the petitioner approached the Child Welfare Committee (CWC), Balasore. The CWC ordered the physical production of the child. This production order was challenged before the Supreme Court. The Apex Court declined to interfere with the production direction but restrained the CWC from passing any order concerning custody. In the interregnum, asserting his right as a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, the petitioner invoked the extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution, filing a petition in the nature of habeas corpus seeking restoration of custody.

Arguments Advanced by the Petitioner:

The petitioner’s primary submission revolved around two foundational planks—jurisdiction and guardianship rights. It was contended that the High Court possesses ample authority under Article 226 to issue writs, including habeas corpus, in appropriate cases involving custody of minors. Reliance was placed on a catena of Supreme Court precedents affirming that writ courts are not powerless in custody matters, particularly when a child is allegedly detained unlawfully.

Emphasizing his statutory status, the petitioner argued that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of a minor child. Therefore, any retention of custody by third parties, even close relatives, without his consent amounted to illegal detention. It was urged that the welfare of the child would be best served under his care as the biological father and lawful guardian.

The petitioner also sought to strengthen the jurisdictional foundation by relying on the decision of the Supreme Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors. (2019), wherein it was recognized that habeas corpus petitions in custody matters are maintainable if the detention of the minor is found to be illegal. Further reliance was placed on Gautam Kumar Das v. NCT of Delhi & Ors., 2024 INSC 610, to underline that the extraordinary jurisdiction can be invoked when circumstances warrant immediate judicial intervention.

According to the petitioner, relegating him to civil remedies would unnecessarily prolong the matter and exacerbate emotional distress, especially when his right as a natural guardian stood statutorily recognized. The argument was that the writ court should not shirk its constitutional duty when a father seeks custody of his minor child from relatives who have no legal guardianship order in their favour.

Arguments Advanced by the Opposite Parties:

Per contra, the private opposite parties vehemently disputed the maintainability of the habeas corpus petition. Their principal contention was jurisdictional: the High Court’s writ jurisdiction cannot be invoked to decide complex custody disputes, especially when the custody is not demonstrably illegal.

It was submitted that the child’s custody with the maternal uncle and aunt was not clandestine or forceful but pursuant to proceedings before a competent forum—the Child Welfare Committee. The CWC had already directed production of the child, and the Supreme Court had refrained from interfering with that order while restraining further custody directions. In such circumstances, the custody could not be termed “illegal” or “unlawful.”

The opposite parties further contended that child custody matters inherently involve intricate factual inquiries—evaluation of the child’s emotional bonds, stability, environment, and overall welfare. Such questions cannot be conclusively determined on affidavits, which form the basis of writ proceedings. They argued that civil courts, equipped to conduct detailed evidence-based inquiries under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, are the appropriate forums.

Reliance was placed on precedents cautioning against the misuse of habeas corpus as a substitute for guardianship proceedings. The opposite parties emphasized that the welfare of the child—not the legal entitlement of a parent—remains paramount. Therefore, unless custody is per se illegal, writ jurisdiction ought not to be invoked.

Judicial Analysis and Precedential Framework:

The Division Bench undertook a meticulous survey of Supreme Court jurisprudence to delineate the boundaries of habeas corpus in custody matters. The Court examined the ratio of Tejaswini Gaud, where it was held that the writ may be maintainable if custody is illegal. However, it clarified that the existence of jurisdiction does not automatically mandate its exercise in every custody dispute.

The Court also referred to Vivek Kumar Chaturvedi & Anr. v. State of Uttar Pradesh & Ors., 2025 INSC 159, wherein the Supreme Court reiterated that habeas corpus may be issued when custody is de hors the law, considering the specific facts of the case. Additionally, the Bench considered Nirmala v. Kulwant Singh & Ors., 2024 INSC 370, which emphasized that welfare considerations dominate custody determinations.

Importantly, the High Court underscored that the entertainability of habeas corpus in custody matters cannot be reduced to a rigid formula or mechanical test. The Bench observed that it cannot be decided “on the basis of Euclid’s Theorem,” highlighting the nuanced and fact-specific nature of such disputes.

The Court articulated a crucial principle: once custody does not appear illegal or unlawful, and the real issue pertains to whether the welfare of the child requires shifting custody, the writ court must exercise restraint. It is not the function of the writ court to undertake a comprehensive guardianship inquiry.

Court’s Findings:

Applying the settled legal principles to the facts, the Court found that the custody of the minor child with the maternal relatives was not illegal. The retention of custody stemmed from proceedings before the Child Welfare Committee, a competent statutory forum. Therefore, the essential precondition for issuing a writ of habeas corpus—illegal detention—was absent.

The Bench emphasized that the present dispute raised complex questions regarding the child’s welfare. Determining whether uprooting the child from the current environment would serve his best interests required detailed factual examination, something not feasible within the limited framework of writ proceedings based on affidavits.

The Court categorically held that when complexities are perceived, the writ court should not usurp the powers of the civil court. Instead, the appropriate course is to relegate the parties to approach the civil court under the Hindu Minority and Guardianship Act, 1956, or the Guardians and Wards Act, 1890.

In doing so, the High Court relied on its earlier decision in Koushalya Das v. State of Odisha & Ors., 2022 LiveLaw (Ori) 103, which reiterated that writ courts determine rights on affidavits and must decline jurisdiction where detailed inquiry is necessary.

Consequently, the habeas corpus petition was dismissed, leaving it open to the petitioner to pursue appropriate remedies before the competent civil forum.