Natural Parent’s Primacy Reaffirmed: Habeas Corpus Maintainable to Recover Minor from Grandparent Despite Pending Guardianship Proceedings

Introduction

This commentary analyses the Bombay High Court’s decision in Pravin Nathalal Parghi v. State of Maharashtra & Ors., Writ Petition No. 2374 of 2025, pronounced on 4 September 2025 by a Division Bench comprising Ravindra V. Ghuge and Gautam A. Ankhad, JJ. The judgment confronts a recurring and sensitive question in child custody law: when, and to what extent, can the extraordinary writ of habeas corpus be deployed to restore a child’s custody to a natural parent from a grandparent, particularly when custody proceedings under the Guardians and Wards Act, 1890 (“G&W Act”) are already pending.

The petitioner-father, a municipal employee, sought a writ of habeas corpus to secure the custody of his five-year-old son, Mst. Lavya Parghi, from Respondent No. 5, the child’s grandmother (the petitioner’s mother). The family setting is unusual: the petitioner is the biological father of twins born via surrogacy in 2019; one twin (Mst. Lakshya) is in the father’s custody; the other (Mst. Lavya) has remained with the grandmother since birth due to early health complications. Subsequent familial disputes, police complaints, and a property-related conflict complicated matters, culminating in parallel family court custody proceedings and this writ petition.

Key issues included: (i) the maintainability of habeas corpus in the face of pending G&W Act proceedings; (ii) whether the grandmother’s continued retention of the child qualifies as “illegal detention” vis-à-vis the natural parent; and (iii) how the paramountcy of the child’s welfare should inform immediate custody arrangements, including sibling cohesion and transitional care.

Summary of the Judgment

The High Court partly allowed the writ petition and directed Respondent No. 4 (the police) to secure custody of Mst. Lavya from Respondent No. 5 (grandmother) and hand him over to the petitioner within two weeks. In doing so, the Court:

Held that a writ of habeas corpus is maintainable in child custody matters where a minor is in the custody of a person not legally entitled to such custody, even if G&W Act proceedings are pending, relying substantially on the Supreme Court’s decisions in Tejaswini Gaud v. Shekhar Tiwari (2019) 7 SCC 42 and allied cases.
Recognized the biological father (with the mother cohabiting and supportive) as the natural guardian with a legitimate and superior claim to custody, absent evidence that custody with the father would be detrimental to the child’s welfare.
Emphasized that the grandmother’s emotional bond does not eclipse the legal primacy of the natural parents; property disputes and allegations of incapacity were not substantiated to displace the parental right.
Noted that the other twin, who has cerebral palsy, is already under the petitioner’s care, and there was nothing on record to suggest the father’s incapacity to care for both children.
Put in place transition-sensitive directions:
- Child’s schooling and extra-curricular activities to remain undisturbed during the current academic year.
- Grandmother’s visitation permitted on any weekday between 9:00 a.m. and 6:00 p.m. at the petitioner’s residence for three months; the child’s aunts may accompany her.
- The parties must cooperate and may approach the Family Court for any further or ancillary directions.

Analysis

Precedents Cited and Their Influence

The Bench anchored its ruling in a coherent line of Supreme Court jurisprudence that has consistently treated the continued withholding of a child from a person vested with legal guardianship as akin to “illegal detention” amenable to habeas corpus:

Tejaswini Gaud v. Shekhar Tiwari (2019) 7 SCC 42: Consolidated earlier authorities and clarified that habeas corpus is a discretionary, extraordinary remedy available in child custody when the minor is held by someone not legally entitled to custody. The presence of an alternative remedy (e.g., under the G&W Act) does not, by itself, bar the writ if the ordinary remedy is ineffective in the circumstances.
Gohar Begam v. Suggi, AIR 1960 SC 93: A seminal case under the old Code of Criminal Procedure, where the Supreme Court held that refusal to hand over a child to the natural guardian amounts to illegal detention, and that availability of the G&W Act does not negate the remedy via habeas corpus. This principle remains foundational.
Veena Kapoor (Dr.) v. Varinder Kumar Kapoor, (1981) 3 SCC 92: The Court underscored that in inter-parent disputes, the question of custody, even on habeas corpus, must be informed by the child’s welfare; it also recognized trial-court fact-finding to guide the Supreme Court’s decision. This supports the notion that habeas corpus in custody is welfare-oriented, not purely jurisdictional.
Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC 525: The Supreme Court cautioned that habeas proceedings should not decide complex status questions (e.g., validity of adoption) that require trial; rather, the focus is the immediate legality of custody. This circumscribes the scope of habeas corpus in custody matters.
Manju Malini Seshachalam v. Vijay Thirugnanam, 2018 SCC OnLine Kar 621: The Karnataka High Court treated the refusal by non-parents to return a child to the natural mother as illegal detention, echoing the national principle applied by the Bombay High Court here.
GAUTAM KUMAR DAS v. NCT OF DELHI (2024 INSC 610): The Supreme Court directed custody to the father where the child had been with the maternal aunts, holding that in the absence of evidence of unfitness or detriment, the natural parent’s right subsists. The Bombay High Court considered these facts “almost similar” and found the ratio directly applicable; indeed, the instant case was stronger because both parents were together and willing to care for the twins.

Through these authorities, the Bench reaffirmed two core tenets: (i) habeas corpus is available in custody disputes to immediately restore a child to the rightful custodian where the current holder lacks legal entitlement; and (ii) the child’s welfare remains paramount, but absent proof of detriment in parental custody, the natural parent’s claim prevails over non-parental caregivers.

Legal Reasoning Employed by the Court

Maintainability despite pending G&W Act proceedings: The Court followed Tejaswini Gaud and Gohar Begam to hold that the existence of a family court forum and a pending custody petition under the G&W Act does not bar the writ. Habeas corpus is appropriate where the minor is with a person who is not the legal custodian and immediate intervention best serves the child’s interest.
Who is the legal custodian (natural guardian): The biological father (with the mother cohabiting) is the natural guardian under applicable personal law. The grandmother, although a close relative with an emotional bond, has no superior legal right to custody against a fit, willing, and able parent.
Welfare assessment (paramount consideration):
- No evidence of detriment to the child if placed with the parents: There was no marital discord; the father is gainfully employed with the Municipal Corporation; the mother resides with the father; and the father already cares for the twin sibling with special needs.
- Sibling cohesion as a welfare factor: While not framed as a standalone rule, the Court gave weight to unifying the twins under parental care, implicitly recognizing the developmental and emotional benefits of sibling continuity.
- The grandmother’s age (74) and her own maintenance claim under the Senior Citizens Act underscored the practical limitations of long-term custodial care by a senior citizen vis-à-vis capable parents.
- Property dispute allegations: The Court declined to allow these to overshadow the child’s best interests or the parents’ legal primacy.
Scope of habeas corpus in custody: Echoing Rajiv Bhatia and Tejaswini Gaud, the Bench emphasized that habeas corpus does not adjudicate complex parental rights or long-term guardianship in full; it remedies present unlawful detention and ensures immediate welfare. The Family Court remains open to address further or future directions.
Practical, transition-oriented directions: Recognizing possible adjustment issues, the Court stabilized the child’s school and activities and crafted liberal, time-bound visitation for the grandmother and aunts, expecting cooperation and de-escalation, with recourse to the Family Court for any difficulties.

Impact and Prospective Significance

This decision is poised to influence custody litigation and police practices in Maharashtra in several ways:

Reaffirmation of natural parent primacy: Grandparents or extended family members caring for a child temporarily cannot, without more, defeat the superior custodial claim of a fit natural parent. Emotional bonds do not translate into superior custodial rights.
Habeas corpus as a viable, expedited remedy: Parents need not await protracted G&W Act proceedings to regain custody from non-guardians. Where the child is held by someone not legally entitled to custody, habeas corpus can secure swift restoration, subject to welfare and transition safeguards.
Clarification of “illegal detention” in family contexts: The judgment fortifies the principle that withholding a minor from a legal guardian, without legal entitlement or judicial order, amounts to illegal detention for writ purposes.
Sibling unity as a welfare consideration: While not establishing a standalone doctrine, the Court’s emphasis on the father already caring for the other twin signals that keeping siblings together will attract weight in welfare balancing.
Senior citizens’ claims vs. child custody: FIRs and proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, though relevant in their own domain, cannot be leveraged to override a fit parent’s custodial right, absent evidence that parental custody harms the child’s welfare.
Practice guidance for future cases:
- Non-parents holding minors should promptly seek appropriate guardianship orders if long-term custody is intended; otherwise, their continued retention is vulnerable to habeas relief.
- Courts are likely to prefer balanced, transition-oriented directions (stable schooling, liberal visitation) while restoring custody to the natural parent.
- Police will be expected to act within clear timelines to implement writ directions restoring custody.

Complex Concepts Simplified

Writ of Habeas Corpus (child custody): Traditionally used to challenge unlawful detention, habeas corpus in custody disputes serves to quickly restore a child to the person legally entitled to custody (usually the natural parent), when the child is being held by someone without legal authority.
Natural Guardian: Under applicable personal laws (e.g., the Hindu Minority and Guardianship Act, 1956 for Hindus), parents are typically the natural guardians of their minor children. This legal status gives parents a superior claim to custody, unless the child’s welfare demonstrably requires otherwise.
Illegal Detention (in custody context): If a non-parent (or any person without legal authority) refuses to return a child to the natural guardian, the law treats that refusal as “illegal detention” for habeas purposes, enabling the High Court to direct immediate restoration.
Guardians and Wards Act vs. Habeas Corpus: The G&W Act provides the standard route for detailed custody adjudication after a full inquiry. Habeas corpus, by contrast, is an extraordinary and swift remedy used when the child is with someone not legally entitled to custody and immediate welfare concerns call for intervention. The availability of the G&W Act does not bar habeas in appropriate cases.
Paramountcy of Welfare: In all custody matters, the child’s best interests are supreme. Even the natural parent’s superior right yields if parental custody would harm the child. Conversely, absent proof of detriment, the natural parent’s claim ordinarily prevails over a non-parent’s claim.
Transition Arrangements: Courts often order measures such as maintaining the child’s school routine and allowing generous visitation to ease adjustment when custody changes hands, signaling a child-centric, non-punitive approach.

Key Elements from the Judgment

Writ of habeas corpus allowed; police directed to secure and hand over the child to the father within two weeks.
Schooling and extra-curricular activities to remain undisturbed during the current academic year.
Grandmother’s weekday visitation (9:00 a.m. to 6:00 p.m.) at the father’s residence for three months; aunts may accompany.
Both sides must cooperate; recourse to the Family Court is expressly preserved for any further directions.
No order as to costs; Rule made partly absolute.

Why This Case Matters

While not charting an entirely new doctrinal path, the judgment crystallizes and localizes for Maharashtra the Supreme Court’s guidance on habeas corpus in child custody. It does so in a fact matrix common to Indian families: a grandparent assumes temporary care in an emergency (here, neonatal health complications and pandemic-related exigencies), but the arrangement hardens into a long-term separation absent judicial sanction. The Court’s response—swift restoration to a fit natural parent, allied with considerate transition safeguards—will likely encourage timely regularization of custody through courts and deter the normalization of extra-legal caregiving arrangements that sideline parental primacy.

Conclusion

The Bombay High Court’s decision reaffirms a clear, principled approach: habeas corpus remains a potent, child-centric remedy to restore custody to a natural parent where a minor is held by someone not legally entitled to custody, notwithstanding pending guardianship proceedings. The paramount consideration is the child’s welfare; in the absence of evidence that parental custody is detrimental, the legal primacy of the parent controls. Sensitive to the child’s adjustment, the Court preserved schooling stability and provided liberal visitation, emphasizing cooperation and recourse to the Family Court for granular issues. In the broader legal landscape, the judgment strengthens the doctrinal bridge between parental primacy and child welfare, while promoting pragmatic, transition-friendly execution of custody orders.