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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
                 ======================================================
                 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:
Patna High Court CR. WJC No.558 of 2026(2) dt.19-03-2026
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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
          Patna High Court CR. WJC No.558 of 2026(2) dt.19-03-2026
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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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