Child in mother’s custody ‘is not illegally detained’: Gujarat HC raps father for filing habeas corpus plea

On October 27, the HC had directed the prosecutor to place on record the status of the missing persons complaint filed by the petitioner on October 9, regarding his wife and son.

The court rebuked the petitioner for invoking habeas corpus instead of approaching a civil court for custody or visitation, stating that the mother is a “natural guardian” of the child and that the case cannot be considered as “illegal detention”. The observation came after the Bodakdev police in Ahmedabad submitted a report recording the wife’s statement.

On Wednesday, after examining the police report and hearing submissions, Justice H D Suthar observed that the wife had “voluntarily left her matrimonial home” and the petitioner ought to have pursued the appropriate legal remedy. The petition had also named a friend of the wife as a respondent, with whom she is said to be staying, according to the Bodakdev police’s report.

In its oral order, the court said, “….(The wife) left for Ahmedabad airport and travelled to Delhi and thereafter to Sikkim… She came back with the respondent (friend) residing at Gandhinagar… the court is of the view that no illegal detention or purpose is found as he is in the custody of a natural guardian, i.e. the mother.”

The court further said, “(The petitioner) can file for the appropriate remedy provided under the law for seeking custody or explore visitation rights, rather than filing a habeas corpus petition.”

The HC also rejected the petitioner’s request for directions to the police to mediate a meeting with his estranged wife, stating that “it was not a matter concerning the police”.