Can’t ignore mother’s plea: Allahabad High Court gives woman another chance to secure access to 20-month-old son

“There is no need to refer judgments on the settled proposition of law that in custody matters, it is only the welfare of the child that is of paramount consideration and once we have arrived at a conclusion that writ petition could not be dismissed as not maintainable or the forum of the writ court as not the appropriate one, the matter has to be considered by the writ court on merits where the parties would have their full say,” the Allahabad High Court said on April 3.

Division bench intervenes

Challenging the dismissal by the single-judge bench on November 6, 2025, the mother had filed a special appeal before the division bench.

The division bench of the Allahabad High Court examined whether such a dismissal was legally sustainable and whether the writ court could still exercise jurisdiction in a child custody matter where the minor’s welfare was at stake.

Chief Justice Arun Bhansali and Justice Kshitij Shailendra reiterated that in all custody disputes, the welfare of the child is the “paramount consideration.”

It held that courts cannot decline to hear such petitions merely because an alternative remedy exists under the Guardians and Wards Act, especially when the well-being of a minor is at stake.

The Allahabad High Court bench found fault with the single judge’s reasoning, observing that the writ court had failed to consider the matter on merits. It held that the mere availability of an alternative statutory remedy does not bar the exercise of writ jurisdiction, particularly in cases involving the custody of minors.

“The view taken by the learned Single Judge is contrary to settled law,” the Allahabad High Court bench noted, referring to precedents of the Supreme Court which affirm that habeas corpus petitions are maintainable in child custody matters, even when one parent has custody.

Custody dispute, habeas corpus plea

• The appellant-mother approached the Allahabad High Court after alleging that her child had been forcibly taken away by the father amid an ongoing matrimonial discord.
• She relied on a September 10, 2025, order of the Child Welfare Committee (CWC), which had directed the father to hand over custody of the child to her. However, the order remained unimplemented.
• Seeking urgent intervention, the mother filed a habeas corpus petition before the Allahabad High Court, arguing that the continued custody of the child with the father amounted to illegal detention. The petition emphasised the tender age of the child, then barely over a year old, and asserted that his welfare lay with the mother.
• However, a single judge dismissed the petition at the threshold, observing that disputes relating to custody should be adjudicated under the Guardians and Wards Act, 1890, and that no case of illegal detention had been made out.

Child welfare takes centre stage

The Allahabad High Court reiterated that in all custody disputes, the welfare of the child is the “paramount consideration.” It emphasised that technical objections regarding maintainability cannot override the need to ensure the well-being of a minor.

Quoting established legal principles, the bench observed that habeas corpus is not confined to cases of unlawful detention in the strict sense but extends to situations where a child is deprived of lawful custody. It also noted that courts are empowered to examine competing custody claims within habeas proceedings.

Importantly, the bench highlighted that the child, being of “tender age,” required proper care and protection, which must be evaluated through a full hearing rather than summary dismissal.

Concerns over non-compliance, police conduct

During the course of proceedings, the Allahabad High Court also expressed serious concern over the failure to implement the CWC’s order. It noted that despite directions, authorities appeared to be “busy in writing letters to one another” while the child remained in custody contrary to the committee’s directive.

The court was particularly critical of the role of police officials, observing that there were indications of protection being extended to the father, who was himself a police constable. It warned that such conduct could invite strict action if not addressed.

Arguments

Advocates Kamla Kant Mishra and Varun Mishra, appearing for the mother, argued that the father had deliberately defied the CWC’s order and leveraged his position to avoid compliance. They contended that the writ court ought to have intervened promptly to secure the child’s custody.

Appearing for the father, senior advocate Rakesh Pande, along with others, maintained that he, as a natural guardian, was entitled to custody and that the child’s welfare was better ensured with him. It was also argued that the CWC order was under challenge in appeal, and therefore, no interference was warranted at this stage.

The father’s counsel further suggested exploring mediation to resolve the matrimonial dispute, indicating that the father was open to a possible settlement, including divorce proceedings.

Final order

After considering the submissions, the Allahabad High Court bench concluded that the dismissal of the habeas corpus petition, solely on the ground of an alternative available remedy, was legally unsustainable.

Accordingly, the court allowed the appeal, set aside the November 6, 2025, order of the single judge, and restored the habeas corpus petition to its original number. It directed that the matter be listed before an appropriate bench on April 16 for fresh consideration on merits.