Introduction:

In Himanshu Dilip Kulkarni v. State of HP & Ors, the Himachal Pradesh High Court declined to entertain a habeas corpus petition filed by a father seeking production and custody of his minor daughter, holding that in custody disputes between parents the appropriate remedy lies before the competent Guardian Court. The Division Bench comprising Chief Justice G.S. Sandhawalia and Justice Bipin C. Negi clarified that once the specific whereabouts of the minor are known the writ of habeas corpus is ordinarily not maintainable and the aggrieved parent must approach the court having territorial jurisdiction over the place where the child resides. The petitioner father sought a writ directing production of his minor daughter Ms Yashika alleging that the child’s mother had taken her away from Bangkok to India without his consent and had thereby disrupted the child’s welfare including her education and emotional stability. The marriage between the parties was solemnised on 25 February 2012 and registered on 13 September 2021 and the minor was born on 06 July 2017 in District Kangra near Dharamshala. The couple had resided in Chandigarh Mumbai Bengaluru and later Bangkok Thailand where the father continues to reside. According to the petitioner the mother travelled to India with the child on 10 October 2025 returned to Bangkok after Diwali and was hospitalised briefly in November 2025 after which her brother visited Bangkok. The petitioner alleged that she left Bangkok on 13 December 2025 and upon his return home on 15 December 2025 he discovered that the child’s belongings had been removed and despite repeated attempts to contact her he was informed by her father that she had reached Dharamshala. On these allegations he approached the High Court seeking immediate custody restoration and continuation of the child’s education at her previous school.

Arguments:

The petitioner father contended that the removal of the minor from Bangkok without his knowledge or consent amounted to illegal detention warranting exercise of extraordinary writ jurisdiction. He submitted that the welfare of the child was at stake since abrupt relocation would cause psychological emotional and educational harm. Emphasis was laid on the fact that the child had been studying abroad and that interruption of her academic year would prejudice her development. The petitioner argued that habeas corpus is a swift and efficacious remedy particularly when the child is wrongfully removed from one parent and that the High Court should intervene to secure immediate production. It was further submitted that given the international dimension of the dispute and the father’s residence abroad delay in approaching the Guardian Court would exacerbate hardship. He maintained that the writ court must consider the paramount interest of the child and restore custody to prevent further disruption. The petitioner also contended that since the child was allegedly brought to Himachal Pradesh without his concurrence the act amounted to unlawful confinement.

On the other hand the respondents opposed the maintainability of the petition. It was pointed out that the petitioner himself had clearly averred that the mother and minor child were residing in Dharamshala and therefore the whereabouts of the child were not unknown. The respondents argued that habeas corpus is an extraordinary constitutional remedy intended to secure release from illegal detention and cannot ordinarily be invoked in inter parental custody disputes where both parents have natural guardianship rights. Reliance was placed on the earlier decision of the Himachal Pradesh High Court in Saurav Rattan v. State of Himachal Pradesh & others decided on 09 May 2025 wherein it was held that custody disputes between parents must be adjudicated by the Guardian Court on the basis of evidence rather than through summary writ proceedings. The respondents contended that the Guardian Court is better equipped to examine questions relating to welfare including schooling residence emotional bonding and parental conduct. It was further argued that once the location of the alleged detenue is known territorial jurisdiction lies with the competent court within whose limits the child resides. The State also submitted that no element of illegal detention was made out since the mother as a natural guardian cannot be treated as detaining the child unlawfully in absence of any judicial order restraining her.

Judgment:

After considering the rival submissions the Division Bench dismissed the habeas corpus petition. The Court reiterated the well settled principle that habeas corpus is an extraordinary remedy and is ordinarily not invoked in custody disputes between parents when an efficacious alternative remedy exists. The Bench observed that in cases where the child’s whereabouts are known and the dispute pertains to competing claims of guardianship the proper course is to approach the Guardian Court which can conduct a detailed inquiry. The Court referred to its earlier ruling in Saurav Rattan and emphasized that custody matters require appreciation of evidence and careful evaluation of the child’s welfare which cannot be adequately undertaken in summary writ proceedings. The Bench noted that the petitioner had specifically stated that the child and her mother were residing in Dharamshala and therefore there was no uncertainty regarding the location of the minor. In such circumstances it could not be argued that the child was under secret or illegal detention. The Court further clarified that once the location of the detenue is known the court within whose territorial jurisdiction the child resides would have authority to entertain appropriate proceedings. The Bench observed that if the petitioner approaches the competent court having jurisdiction over Dharamshala the court would be sensitive to the international relocation aspect and ensure expeditious consideration of the custody plea. The Court also took note of the fact that the child had been relocated from a foreign country the father was residing abroad and the present petition had been filed with affidavit attested at Pune indicating that a more comprehensive adjudication was necessary before the appropriate forum. It concluded that the extraordinary writ jurisdiction should not be converted into a substitute for guardianship proceedings particularly when statutory remedies are available under personal and guardianship laws. Accordingly the petition was dismissed granting liberty to the petitioner to seek relief before the competent Guardian Court.