A writ of habeas corpus for child custody is not maintainable when the custody is the result of a voluntary arrangement and no illegal detention exists, as the paramount consideration remains the welfare of the child, best determined through appropriate civil guardianship proceedings.

CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)

[1] Whether the custody of the children, which was entrusted by the father to his parents and his siblings, can be construed as illegal confinement entitling issuance of a writ of habeas corpus, is the question to be considered in this writ petition.

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[2] The facts which are not in dispute, and which can be ascertained from the pleadings, are as follows:-

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[3] The petitioner, Kedar Ghanshyam Parekh (hereinafter referred to as “the father”), had married Vaibhavi Gandhi and out of this wedlock, two children, namely Ekraj and Trayaakshi, who are now 14 and 9 years respectively, were born.

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[4] Unfortunately, since differences arose between the father and said Vaibhavi Gandhi, legal proceedings were initiated for dissolution of the marriage, and a decree of divorce by mutual consent was secured on 07.08.2023.

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[5] Under this decree of divorce, it was agreed by the father and Vaibhavi Gandhi that the father would retain the custody of the two minor children. Thus, under the decree of divorce, the father secured the custody of his two minor children from his first wife, Vaibhavi Gandhi.

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[6] The father avers in this petition that one year and three months after the dissolution of his earlier marriage, he married one Divya Vaidya in the month of November 2024. He admits in the petition that after the marriage, he moved to a rented place, thereby meaning that until then, he was staying with his parents and sisters (who are admittedly unmarried). In fact, the specific averment made by the petitioner in the writ petition are as follows:-

“Thereafter the present petitioner got Married with the Divya S Vaidya on 02/11/2024 and the present petitioner has shifted to the rented place mentioned in the title clause and on the suggestion of the Family Friends and relatives the Kids continued to stay with the respondents no. 3 to 6 and the present petitioner used to visit daily and used to pick up and drop from the school and thereafter used to take them for the Outing and to the new House so that they can comfortable with their Mother and Kids were also happy with their New Mother and started coming to the New Home and spend quality time with Her and in the evening the present petitioner used to drop them to Respondents No. 3 to 6. Later on they have also gone for the Vacation Trip to Kashmir in February 2025.”

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[7] As could be seen from the abovesaid averment, the father categorically admits that he accepted the suggestion of his family friends and relatives and decided to permit his two children to continue to stay with his parents and his two unmarried sisters. In other words, the father does not dispute the fact that he voluntarily handed over custody of his two minor children to his parents and to his sisters. This is obviously because he had married for the second time and had decided to stay with his second wife at a rented place.

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[8] It may be pertinent to state here that Divya Vaidya was also earlier married and out of her earlier marriage, she has two children, one of whom is in a boarding school and the other is residing with her.

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[9] It is also averred in the written petition that on 21.04.2025, the younger child, i.e., the daughter, was admitted to the new school G. D. Goenka International School, and that she attended said school till 07.05.2025. The said school was closed for vacation from 08.05.2025 to 08.06.2025. It is alleged that during the vacation, the father’s parents and his sisters started nagging him abo