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High Court of Orissa at Cuttack ruled out that writ of Habeas Corpus can not be issued in matter of custody of child between Husband and Wife.

In the case of Koushalya Das v. State of Odisha & Ors. in the High Court of Orissa at WPCRL No.66 of 2022 it was held that in the case of child custody between Husband and Wife the writ of Habeas Corpus cannot be issued. Mr. A.K. Sharma (Addl. Government Advocate) defending against Advocate Mr. P.K. Das (the petitioner’s lawyer). In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be.

Facts: In this case, Koushalya Das, the mother of the child, filed a writ petition of habeas corpus in the Orissa High Court, seeking to take the custody of her child from, Ashish Kumar Das who is the father of the child and also her husband, alleging him of illegal custody of their one and half year child.

Judgement: Citing the case of Tejaswini Gaud and others V. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 Supreme Court Cases 42, the court said that the writ of Habeas Corpus is to secure the liberty by finding means to release any unfair, illegal or improper detention. When the guardian of a minor is wrongfully deprived of the custody the child this writ can be seeked. When a minor is detained by someone who does not have the legal custody of the child, it will be considered as illegal detention for applying the writ. In such situation where restoration of custody is to be done from a person who is not the legal or natural guardian of the child the writ can be applied.

In the current scenario Ashish Kumar Das is the father of the child, hence his natural guardian which is why the writ cannot be applied here. In child custody matters the writ is maintainable where detention of a minor child by a parent or others was illegal and without any authority of law. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. Therefore, after the whole factual scenario the court said that the petition is not maintainable and also said that however, the petitioner is at liberty to seek appropriate remedy before appropriate forum in accordance with law.

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JUDGEMENT REVIEWED BY SNIGDHA DUBEY.

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