The High Court retains discretion to grant habeas corpus for custody, yet it cannot disrupt prior lawful custody orders, emphasizing child welfare as paramount.

JUDGMENT :

HARISH TANDON, CJ.

1. The instant writ petition in the nature of habeas corpus is at the behest of the father of a minor child, who is admittedly in the custody of opposite party nos. 5 and 6, being the maternal aunt and uncle, for his production and the custody to be given.

2. Undeniably, the wife of the petitioner died prematurely leaving behind the said minor child, who is five years old as on date. According to the petitioner, after the death of his wife, opposite party nos.5 and 6 were requested to reside at Chennai, where he works for gain to look after the said child. But, without any permission, the said opposite parties took the said child and returned to the State of Odisha and, therefore, the custody of the child is illegal and unlawful.

3. It would be apposite to complete the sequel of events before we embark to decide the issue relating to the reliefs claimed in the instant writ petition in the nature of habeas corpus.

4. The approach was made to the Child Welfare Committee, Balasore (CWC) alleging that the child of the petitioner is in need of care and protection and a direction was passed for physical production of the said child before the CWC. The order was assailed before this Court and ultimately the approach was made to the Apex Court in a Special Leave Petition (Criminal) Diary No.72349 of 2025. The Apex Court disposed of the said Special Leave Petition observing categorically that opposite party no.5 shall produce the child before the CWC, Balasore on 12^th January, 2026 at 11.30 A.M. and such direction shall not be construed in a different manner as it is restricted to production and permission of an interaction between the child and the petitioner. The Apex Court further restrained the CWC from passing any order concerning the custody of the child as the actual custody of the child is presently with opposite party no.5 therein.

5. What can be reasonably inferred and/or logically deduced from the tenet of the said order passed by the Apex Court that the power in the jurisdiction exercised by the CWC in securing the presence of a minor child has not been interfered with. It can also be reasonably inferred that the jurisdiction exercised by the CWC was not found to be infirm or de hors the law. The only restraint put on the CWC was in relation to the custody order to be passed after noticing that the custody of the child is with opposite party no.5. In order to secure the custody of the minor child, the present writ petition is filed in the nature of habeas corpus and it is sought to be contended before this Court that there is no fetter and/or bar in maintaining the writ petition for custody of the minor child.

6. Learned counsel appearing for the petitioner relies upon a judgment of the Apex Court rendered in the case of Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others , (2019) 7 SCC 42 in support of the contention that there is no fetter on the part of the writ Court in considering the petition in the nature of habeas corpus to decide the custody issue. It is further submitted that subsequently, the Apex Court in Gautam Kumar Das Vs. NCT of Delhi and Others , 2024 INSC 610 : (2024) 8 SCR 451 also held that the writ in the nature of Habeas Corpus is maintainable and the writ Court may go into the question of the custody of the minor child. According to the learned counsel for the petitioner, the aforesaid principles of law is further restated in a subsequent decision rendered in the case of Vivek Kumar Chaturvedi and another Vs. State of Uttar Pradesh and others , (2025) 4 SCC 342 . It is thus submitted