Patna High Court
Sana ShahinversusThe State of Bihar through Addl. Chief Secretary, Home Deptt. Govt. of Bihar, Patna
- Decided
- Disposal
- DISPOSED
Holding
The High Court declined to entertain the writ petition and directed the matter to be pursued before the Family Court under the Guardians and Wards Act, 1890.
Summary
Petitioner Sana Shahin filed a writ petition under Article 226 seeking a habeas corpus and mandamus directing the police to produce her minor daughter, who is in the custody of her husband and in‑laws. The High Court held that custody disputes are matters for the Family Court under the Guardians and Wards Act, 1890, not for a writ court. It relied on the Supreme Court decisions in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 and Nirmala v. Kulwant Singh (2024) 10 SCC 595, which limit the use of habeas corpus in child‑custody cases to exceptional circumstances. The Court observed that a detailed enquiry into the child’s welfare is required, which can only be done in a family‑court proceeding. Consequently, the petition was dismissed and the petitioner was directed to approach the Family Court for custody relief.
Issues considered
- Whether a High Court can entertain a writ petition for habeas corpus/mandamus to obtain custody of a minor child.
- Whether the extraordinary jurisdiction under Article 226 is appropriate in child‑custody disputes.
Legislation cited
Subjects
- habeas corpus
- child custody
- Guardians and Wards Act
- writ jurisdiction
- family court
- extraordinary remedy
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.744 of 2026
Arising Out of PS. Case No.-177 Year-2026 Thana- PHULWARISHARIF District- Patna
======================================================
Sana Shahin, Wife of Md. Saddam Hussain Ansari Resident of Village-
Hutton Road, Near Rabbania F.P. School, P.S.- Asansol, District- Bardhaman,
(West Bengal). At pesent Resident of Village- M.R.F. Green Apartment,
Nauhasa, P.S.- Phulwarisharif, Dist.- Patna
... ... Petitioner/s
Versus
1. The State of Bihar through Addl. Chief Secretary, Home Deptt. Govt. of
Bihar, Patna
2. The Director General of Police, Govt. of Bihar, Patna.
3. The Dy. Inspector of General, Patna
4. The Senior Superintendent of Police, Patna
5. The Dy. S.P., Phulwarisharif, Patna
6. The S.H.O. Phulwarisharif Police Station, Patna
7. Md. Saddam Hussain Ansari S/o Late Md. Ismail Ansari Resident of Village-
Flat No. 301, MRF Apartment, Near Abdul Ghar Masjid, Sir Syed Ahamd
Colony, Phulwarisharif, P.S.- Phulwarisarif, District- Patna
8. Kulsum Begum W/o Late Md. Ismail Ansari Resident of Village- Flat No.
301, MRF Apartment, Near Abdul Ghar Masjid, Sir Syed Ahamd Colony,
Phulwarisharif, P.S.- Phulwarisarif, District- Patna
9. Md. Sultan Ansari S/o Late Md. Ismail Ansari Resident of Village- Flat No.
301, MRF Apartment, Near Abdul Ghar Masjid, Sir Syed Ahamd Colony,
Phulwarisharif, P.S.- Phulwarisarif, District- Patna
10. Bilkiss Khatoon D/o Late Md. Ismail Ansari Resident of Village- Flat No.
301, MRF Apartment, Near Abdul Ghar Masjid, Sir Syed Ahamd Colony,
Phulwarisharif, P.S.- Phulwarisarif, District- Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjeet Patel, Adv.
For the Respondent/s : Mr. P.N. Sharma, AC to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
2 09-04-2026 Heard learned counsel for the parties.
2. Following are the relief(s) sought in the present
Patna High Court CR. WJC No.744 of 2026(2) dt.09-04-2026
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application :
"1. For issuance of a writ, in the
nature of writ of habeas corpus directing the
Senior Superintendent of Police, Patna to take
the minor daughter from the custody of
miscreants, who has illegally detained the
minor daughter of the petitioner in their
custody.
II. For issuance of the writ of
mandamus directing Senior superintendent of
Police, Patna to produce the petitioner's minor
daughter in the Hon'ble court and be released
the minor daughter from the custody of the in-
laws and be handed over her. It is further be
pleased to take necessary legal steps against
husband of the petitioner as well as against in-
laws accordance with law.
III. For issuance of any writ/writs,
for granting any other relief/ reliefs for which
petitioner is found entitled to the facts and
circumstances of the present case."
3. By filing the present writ application, the petitioner
is seeking custody of her minor daughter, who is presently in the
custody of her father.
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
provisions of the Guardians and Wards Act, 1890.
5. At this juncture, it would be relevant to take note of
the Hon'ble Supreme Court's decision in Tejaswini Gaud v.
Patna High Court CR. WJC No.744 of 2026(2) dt.09-04-2026
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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:
"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
Patna High Court CR. WJC No.744 of 2026(2) dt.09-04-2026
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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 her minor
daughter. If any such application is made before the Family
Court, the Family Court shall consider the same and pass an
appropriate order in accordance with law after taking the
necessary evidence and the statement of the child.
8. With the aforesaid liberty, the present application
stands disposed of.
Patna High Court CR. WJC No.744 of 2026(2) dt.09-04-2026
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9. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
( Shailendra Singh, J)
annu/Rajesh
U
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