Patna High Court
Manish Kumar ManiversusThe State of Bihar through the Principal Secretary, Department of Home, Govt. of Bihar, Patna
- Decided
- Disposal
- DISPOSED
Holding
The High Court declined to entertain the habeas corpus petition and directed the petitioner to seek relief in the Family Court under the appropriate guardianship statutes.
Summary
Manish Kumar Mani filed a writ petition under Article 226 seeking custody and visitation rights over his minor children, who were in the custody of their mother. The High Court examined whether a habeas corpus petition is appropriate for child custody disputes, noting that such matters are ordinarily governed by the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890. Citing Supreme Court decisions in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) and Nirmala v. Kulwant Singh (2024), the Court held that the writ jurisdiction is extraordinary and should be invoked only when the ordinary remedy is unavailable or ineffective. It concluded that a detailed welfare enquiry is required, which is beyond the scope of a writ court, and therefore directed the petitioner to approach the competent Family Court. The writ application was consequently disposed of.
Issues considered
- Whether the High Court can entertain a habeas corpus petition for child custody under Article 226 of the Constitution.
- Whether the petitioner is entitled to immediate custody of the minor children through a writ remedy.
- Whether the ordinary remedies under the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890 are available and appropriate.
Legislation cited
Subjects
- child custody
- habeas corpus
- family law
- guardianship
- high court jurisdiction
- welfare of child
- Article 226
- family court
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.558 of 2026
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Manish Kumar Mani S/O Sh. Chandra Kumar Jha Resident of Village-
Prasad, P.S- Madhepur, District- Madhubani, Bihar- 847408.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Home,
Govt. of Bihar, Patna Bihar
2. The Director General of Police, Government of Bihar, Patna Bihar
3. The Superintendent of Police, Madhubani Bihar
4. The Station House Officer (SHO) P.S Bheja, Distt.- Madhubani
5. Sonam Jha W/O Shri Manish Kumar Mani D/O Shri Amodh Mishra, R/O
Village and Post- Rahua, P.S- Bheja, Distt.- Madhubani, Bihar- 847408.
6. Vipul Kumar Mishra S/O Amodh Mishra R/O Village and Post- Rahua, P.S-
Bheja, Distt.- Madhubani, Bihar- 847408.
7. Mamta Mishra W/O Sh. Amodh Mishra R/O Village and Post- Rahua, P.S-
Bheja, Distt.- Madhubani, Bihar- 847408.
8. Amodh Mishra R/O Village and Post- Rahua, P.S- Bheja, Distt.- Madhubani,
Bihar- 847408.
9. Vishwash Kumar Mishra R/O Village and Post- Rahua, P.S- Bheja, Distt.-
Madhubani, Bihar- 847408.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rakesh Kumar Singh, Adv.
For the Respondent/s : Mr. Amish Kumar, AC to AG.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
2 19-03-2026 Heard learned counsel for the parties.
2. Following are the relief(s) sought in the present
application :
"(i) For directing the Respondents to
forthwith hand over the custody of the minor
children, namely Manash Kumar Jha and Astuti
Jha, to the Petitioner.
Patna High Court CR. WJC No.558 of 2026(2) dt.19-03-2026
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(ii) For passing an order granting the
Petitioner regular, structured, and meaningful
visitation/access rights to the minor children,
including but not limited to: (i) every alternate
weekend (Saturday and Sunday) (ii) one week
during every school vacation period; (iii) daily
telephonic/video interaction for a minimum
period of thirty (30) minutes; and (iv) overnight
visits at least twice a month;
(iii) For Custody, Visitation, and
Protection of the welfare of his minor children,
who have been unlawfully and illegally withheld
by the Respondents for a continuous period of
more than two (2) years.
(iv) For directing the Respondent to
cease and desist from alienating the minor
children from the Petitioner, and from making
any derogatory, false, or defamatory statements
about the Petitioner in the presence of the minor
children;
(v) For directing that a psychological
and welfare assessment be conducted on the
minor children by a competent child psychologist
/ child welfare expert appointed by this Hon'ble
Court, and that a report be submitted within a
period of four (4) weeks, to determine the current
emotional and psychological condition of the
minor children and the impact of the prolonged
separation from their father."
3. By filing the present writ application, the petitioner
is seeking custody of his children, who are presently in the
custody of their mother.
4. Considering the facts and circumstances of the
case, this Court is of the opinion that the dispute raised involves
adjudication of custody rights. Such issues are appropriately to
be examined by the competent Family Court under the
Patna High Court CR. WJC No.558 of 2026(2) dt.19-03-2026
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provisions of the Hindu Minority and Guardianship Act, 1956 or
Guardians and Wards Act, 1890 as the case may be.
5. At this juncture, it would be relevant to take note of
the Hon'ble Supreme Court's decision in Tejaswini Gaud v.
Shekhar Jagdish Prasad Tewari, reported in (2019) 7 SCC 42,
wherein the court made the following observations:
"20. 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. In cases arising out of the
proceedings under the Guardians and Wards Act, the
jurisdiction of the court is determined by whether the
minor ordinarily resides within the area on which the
court exercises such jurisdiction. There are significant
differences between the enquiry under the Guardians
and Wards Act and the exercise of powers by a writ
court which is summary in nature. What is important is
the welfare of the child. In the writ court, rights are
determined only on the basis of affidavits. Where the
court is of the view that a detailed enquiry is required,
the court may decline to exercise the extraordinary
jurisdiction and direct the parties to approach the civil
court. It is only in exceptional cases, the rights of the
parties to the custody of the minor will be determined
in exercise of extraordinary jurisdiction on a petition
for habeas corpus."
6. Further, in Nirmala v. Kulwant Singh, reported in
(2024) 10 SCC 595, the Hon'ble Supreme Court agreed with the
view in Tejaswini Gaud (supra), and observed as under:
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"23. It can thus be seen that this Court in
Tejaswini Gaud case has held that the habeas corpus
is a prerogative writ which is an extraordinary
remedy. It has been held that recourse to such a
remedy should not be permitted unless the ordinary
remedy provided by the law is either not available or
is ineffective. It has been held that in child custody
matters, the power of the High Court in granting the
writ is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal
custody. It has further been held that in child custody
matters, the writ of habeas corpus is maintainable
where it is proved that the detention of a minor child
by a parent or others was illegal and without any
authority of law.
………..
………
30. We are of the considered view that in
the peculiar facts and circumstances of the case, the
High Court ought not to have entertained the habeas
corpus petition under Article 226 of the Constitution
of India. Since a detailed enquiry including the
welfare of the minor child and his preference would
have been involved, such an exercise could be done
only in a proceeding under the provisions of the
Guardians and Wards Act, 1890."
7. Considering the nature of dispute and the
discussions made hereinabove, the petitioner is at liberty to
approach the Family Court seeking custody of his children. If
any such application is made before the Family Court, the
Family Court shall consider the same and pass an appropriate
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order in accordance with law after taking the necessary evidence
and the statement of the children.
8. With the aforesaid liberty, the present application
stands disposed of.
9. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
( Shailendra Singh, J)
annu/Rajesh
U
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