Kerala High Court dismisses UAE based father’s habeas corpus plea over child visitation rights

In the order dated 25th May 2026, it was observed by the court that “from the pleadings in the writ petition, it cannot be said that the minor child born in wedlock between the petitioner (father) and the 3rd respondent (mother), is in illegal confinement by any person, much less the 3rd respondent.”

The bench held that the writ of habeas corpus is maintainable only where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

‘Intentionally blocked by the mother’

• The minor child in question was born in wedlock between the father who had filed the present plea and the mother who has been presently proceeded against.
• The petitioner is employed as a client relationship manager in the United n Arab Emirates.
• The child was under the care and custody of the petitioner from November 6, 2023, to June 4, 2025.
• In accordance with the judgement dated June 4, 2025, of the Family Court, as per the mediation agreement entered into between the father and the mother, the provisional custody of the child was entrusted to the mother.
• This custody was given subject to express conditions protecting the father’s parental communications and visitation rights, apart from the child’s welfare and emotional connections.
• As per the father, the mother had willfully and deliberately violated the conditions in the mediation agreement by denying communication, visitation and access to the minor child from April 24,2026 onwards.
• The violation according to the father included all modes of communication with the child, being intentionally blocked by the mother without any lawful justification, hence violating mediation agreement.
• The father on May 16, 2026, had also approached the concerned family court, seeking the restoration and enforcement of his visitation, communication and custody-related rights.
• However, in the above proceedings, the notice could not be served upon the mother and the minor child as they were found to be unavailable at the provided address.
• The father, who had returned to Kerala from the United Arab Emirates on May 15, 2026, only to spend time with the child before the reopening of the school, was required to report back to work before May 25, 2026.

‘If habeas corpus can be maintained’

Advocate Sunitha KG appearing on behalf of the father argued on whether a writ of habeas corpus was maintainable in child custody case, relying on the judgment of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari.

Public prosecutor KA Anas appeared and argued on behalf of the state.

No ‘Illegal confinement’

The Kerala High Court while observing that the minor child was in custody of his mother who was entrusted with the same by the judgement of the concerned family court and also based on mediation agreement entered into by both the parents, dismissed the writ petition as it held that there was no preliminary ground based on which it could be said that the child was under “illegal confinement.”

To its surprise, the court also noted that the father had not even mentioned the minor child being in an “illegal confinement” and nor had he mentioned any particulars of the minor child, such as name, age or at least gender in the writ petition, except stating the name and age of the minor.

On the legal front the court observed that an order of habeas corpus is an extraordinary relief and right under the same should not be exercised unless the ordinary relief given under the law is either not available or is ineffective.

The court eventually held that the writ of habeas corpus is maintainable only where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

“Welfare of the child that is of paramount consideration”

In an unrelated case, the Allahabad High Court had set aside an order refusing to entertain a habeas corpus plea of a woman, stuck in a marital dispute, over her 20-month-old son, and held that courts cannot turn away such pleas only because an alternative remedy exists, particularly when the child’s welfare is at stake.

The mother in this case had approached the high court alleging that her child had been forcibly taken away by the father amid an ongoing matrimonial discord. She had also placed reliance on an 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.

The mother then filed a plea of habeas corpus before the Allahabad High Court where the same dismissed by the single judge while 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.

While observing that the writ court had failed to consider the matter on merits. The Allahabad High Court stated that in all custody disputes, the welfare of the child is the “paramount consideration.” It was also emphasized that technical objections regarding maintainability cannot override the need to ensure the well-being of a minor.

Accordingly, the court allowed the appeal and restored the plea of habeas corpus to its original number and directed the matter be listed before an appropriate bench for fresh consideration on merits.