Case Note & Summary
The petitioner, Akhil Paul, filed a writ petition (criminal) before the High Court of Kerala at Ernakulam seeking habeas corpus relief in relation to his minor child, alleging illegal detention by respondent No.3, Jilty Tom. The matter arose in the context of a matrimonial dispute, with the petitioner and respondent No.3 living separately since 2022 and the minor child residing with respondent No.3. The petitioner claimed that the child was not being produced before the Family Court, where proceedings concerning custody were already pending. The court considered the statement of facts submitted by the Inspector of Police, Erattupetta Police Station, and heard counsel for both sides. The court observed that the petitioner and respondent No.3 had been living separately since 2022 and the child had been residing with respondent No.3. Prima facie, the court found no illegal detention of the minor child. However, noting that the matter was presently seized by the Family Court and the petitioner's grievance was that the child was not being produced before the Family Court, the court directed respondent No.3 to produce the child before the Family Court on a date to be fixed by that court pursuant to the order. The Family Court was directed to decide the issue of custody of the child in accordance with the guidelines laid down by the High Court in Hayarunisa Abdul Hakkim v. The Director General of Police and Others. The writ petition was disposed of accordingly. The court did not issue a writ of habeas corpus but provided a procedural direction to ensure the child's presence before the Family Court for custody adjudication. The judgment was delivered on 6 August 2026 by a Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar V.M.
Headnote
A) Constitutional Law - Habeas Corpus - Custody of Minor Child - Constitution of India, 1950, Article 226 - The petitioner alleged illegal detention of his minor child by respondent No.3, but the court found prima facie no illegal detention as the child had been residing with respondent No.3 since 2022 and the matter was pending before the Family Court. The court directed respondent No.3 to produce the child before the Family Court on a date to be fixed by that court, and the Family Court was to decide custody in accordance with the guidelines in Hayarunisa Abdul Hakkim v. The Director General of Police and Others. Held that the writ petition stood disposed of accordingly. (Para 4)
Issue of Consideration
Whether the minor child was under illegal detention warranting issuance of a writ of habeas corpus, and whether the respondent should be directed to produce the child before the Family Court for custody adjudication.
Final Decision
The writ petition was disposed of. The court found prima facie no illegal detention of the minor child. It directed respondent No.3 to produce the child before the Family Court on a date to be fixed by that court pursuant to the order. The Family Court was directed to decide custody in accordance with the guidelines in Hayarunisa Abdul Hakkim v. The Director General of Police and Others.
Law Points
- In a habeas corpus petition concerning minor child custody
- if the child is residing with one parent and a Family Court is already seized of the custody matter
- there is prima facie no illegal detention
- the proper course is to direct the parent having custody to produce the child before the Family Court
- which shall decide custody in accordance with guidelines laid down by the High Court.
