Grandmother May Love, But Love Alone Does Not Confer Legal Custody: Bombay High Court Invokes Habeas Corpus to Restore Child to Biological Father

“Emotional attachment cannot eclipse the legal rights of a biological parent” — Bombay High Court holds grandmother’s custody illegal despite pending Guardianship Petition. Bombay High Court delivered a powerful ruling invoking extraordinary writ jurisdiction to restore custody of a five-year-old child to his biological father. The Court rejected the grandmother’s claim to custody and held that in the absence of demonstrable harm or danger to the child, natural guardianship of the parent cannot be usurped by any other person, however affectionate or well-intentioned.

The Division Bench of Justices Ravindra V. Ghuge and Gautam A. Ankhad emphasized that “the rights of a biological parent as a natural guardian cannot be denied on mere emotional grounds raised by a relative” and ordered the police to retrieve the child from the grandmother and hand him over to the petitioner within two weeks.

“Habeas Corpus is Maintainable When Custody is With a Person Who Has No Legal Authority” — Court Carves Exception Despite Ongoing Guardianship Proceedings

The judgment began by recognising the Petitioner’s claim as the biological father and natural guardian of twin sons born via surrogacy in 2019. While one child (Mst. Lakshya) was in his care, the other (Mst. Lavya) was in the custody of Respondent No. 5 — his 74-year-old mother, with whom he had developed deep personal conflicts. The grandmother refused to return custody despite repeated requests and legal notices.

The Court noted: “Ordinarily, custody disputes are to be adjudicated under the Guardians and Wards Act, 1890. However, in extraordinary situations, the writ jurisdiction under Article 226 may be invoked — and this case qualifies as one.”

Relying extensively on Tejaswini Gaud vs. Shekhar Tiwari (2019) 7 SCC 42, the Court reiterated that Habeas Corpus can be issued to restore a minor to a legal guardian when custody is wrongfully retained:

“The writ extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it… For restoration of custody from a person who, under personal law, is not the legal guardian, in appropriate cases, the writ court has jurisdiction.”

“Custody Cannot Be Weaponised in Property Disputes” — Court Rejects Grandmother’s Allegations as Legally Irrelevant

The grandmother claimed she had been caring for the child since birth and that the Petitioner had originally referred to the twins as a “burden”. She accused him of pursuing custody merely to pressure her in a property dispute, and alleged emotional and financial incapacity to raise both children — especially since one suffers from cerebral palsy.

But the Court firmly held: “The child cannot be denied the care of his parents merely because of disputes between the Petitioner and Respondent No. 5, nor can property-related disputes deprive the biological parents of their lawful custody.”

It emphasized that while grandparents may share a deep emotional bond, that alone cannot override the legal primacy of the biological parent, especially when both the father and mother live together without marital discord and are willing to care for both children.

“Respondent No. 5 has no legal entitlement to retain custody of her grand-child vis-à-vis the Petitioner… more so when she is 74 years of age and has herself filed a complaint seeking maintenance from the Petitioner.”

“Welfare of Child Paramount — But Must Be Judged in Light of Legal Entitlements” — Court Calls for Unity, Not Usurpation

Addressing the welfare principle, the Court reminded both sides that the child's best interest remains central — but that best interest is not automatically presumed based on affection alone. The real test, it observed, lies in assessing if continuation of non-parental custody causes harm, which was not shown in this case.

“Though Respondent No. 5 may share an emotional bond with the child, such attachment does not confer upon her a superior right to custody over that of the biological parent.”

“There is nothing on record to suggest that the Petitioner is incapable of caring for his child. Significantly, the other twin, who suffers from cerebral palsy, is already in his care.”

“Family Court May Continue — But It Cannot Stall Restoration of Basic Parental Rights”

While proceedings under the Guardians and Wards Act were pending, the Court found that this fact alone cannot preclude intervention under Article 226 in appropriate cases. Referring to Gautam Kumar Das vs. NCT of Delhi (2024 INSC 610), the Court noted that a similar case where a father sought custody from the maternal family was resolved in the father's favour despite pending civil proceedings.

“In that case, custody was handed over to the father… The ratio squarely applies to this case. In fact, the case in hand is on a stronger foundation since the couple is together and capable of taking care of their twin child.”

The Court was not persuaded by the Respondents’ reliance on Gaurav Nagpal vs. Sumedha Nagpal, stating that it was a different context of matrimonial dispute, and its principles had already been accounted for in Tejaswini Gaud.

“Emotional Adjustment Is Temporary — Biological Rights Are Permanent” — Court Prescribes Visitation to Ease Transition

While allowing the petition, the Court remained sensitive to the child's emotional continuity and permitted structured visitation rights:

“Respondent No. 5 shall be permitted to meet the child on any weekday between 9:00 a.m. and 6:00 p.m. at the Petitioner’s residence… this shall be initially for a period of three months.”

The Court added: “The Petitioner, by himself or through his wife, shall not create obstacles during these meetings… both parties are directed to extend full cooperation to safeguard the welfare and best interests of the child.”

A Rare But Resolute Invocation of Constitutional Protection in Custody Disputes

This judgment underscores the rare but principled use of writ jurisdiction in child custody, particularly where one party unlawfully retains custody in defiance of legal guardianship rights. It also serves as a reminder that family ties, however affectionate, cannot eclipse parental rights unless harm is evident.

“The rule is made partly absolute. Custody shall be restored to the biological father. There shall be no order as to costs.”

Date of Decision: September 4, 2025