AI genrated imageNEW DELHI: The Andhra Pradesh high court has dismissed a father's habeas corpus plea seeking custody of his two minor daughters, holding that a writ court cannot conduct a detailed inquiry into a child's welfare, and that such disputes must be decided under the Guardians and Wards Act, 1890, especially when guardianship proceedings are already pending elsewhere.What was the dispute aboutAccording to the order, the father, filed a habeas corpus petition for custody of his two daughters, aged about 5 and 3 years, who were living with their maternal grandmother. The children's mother had died under suspicious circumstances, and an FIR was registered against the father under Sections 498A and 306 IPC. The father, in turn, filed a separate FIR against the grandmother.He had also filed a separate case under the Guardians and Wards Act, 1890, asking the district court to decide the custody of the children. This case was pending before the additional district judge. The respondents argued that since this guardianship case was already going on, the father could not also file a habeas corpus petition in the high court.What did the high court sayA division bench of Justice Ravi Nath Tilhari and Justice Subhendu Samanta held that a habeas corpus writ in child custody matters is an extraordinary remedy, to be used only when a child's detention is shown to be illegal.Relying on the Supreme Court's ruling in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, the bench noted that ordinarily, custody disputes must be resolved under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, since these forums allow a proper inquiry based on evidence, unlike the summary, affidavit-based process in a writ court."In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, the hon'ble apex court held that in child custody matters, the writ of habeas corpus is maintainable when it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. It was further held that 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... 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," the bench observed.The bench also referred to a more recent Supreme Court ruling in Jose Antonio Zalba Diez Del Corral v. State of W.B. In that case too, the top court had said that the proper way to settle custody was through the Guardians and Wards Act, since the petitioner in that case had already filed a case under it.Based on all this, the high court said this was not the right case to use its writ powers."We are of the considered view that in the facts and circumstances of the case, the minors being daughters aged 5 and 3 years, their mother having died, there been an FIR against the petitioner – father under Sections 498A & 306 IPC, and the minors being in the custody of the maternal grandmother, it is not apt case to invoke the extra-ordinary powers under Article 226 of the Constitution of India in a writ of Habeas Corpus."The court said a full, detailed inquiry into the children's welfare should happen in the guardianship case, not in a habeas corpus case.The court dismissed the habeas corpus petition, clarifying that it had not gone into the merits of the custody claim, which will now be decided in the pending guardianship case.