The Kerala High Court has directed that a minor child be returned to his mother after finding that the father had taken custody of the child despite a Family Court decree granting permanent custody to the mother. The court stressed that a parent cannot bypass legal procedures and take custody of a child in violation of an existing court order.
Background of the Case
The case arose from a habeas corpus petition filed by a mother seeking the return of her minor son. She told the court that she had been granted permanent custody of the child by the Family Court, but the father allegedly removed the child from her custody while he was at school and did not return him.
Instead of pursuing only execution proceedings before the Family Court, the mother approached the High Court seeking immediate restoration of custody.
A Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar V.M. personally interacted with the child, as well as both parents.
During the interaction, the child ultimately expressed a desire to stay with his mother. The Bench noted that although the child initially indicated that he wanted to go with his father, that statement did not appear to have been made entirely of his own free will.
The court also observed that the father had taken custody of the child contrary to the Family Court’s decree.
The father argued that the child had made complaints about the mother during their interaction at school. However, the High Court said that if circumstances had changed, the father should have approached the Family Court for modification of the custody arrangement rather than acting on his own.
The Bench observed:
“There may be circumstances warranting modification of a decree or order passed by the Family Court; however, the due legal process must be followed.”
The court further noted that an order passed by the Family Court in April 2026 had contemplated the child's temporary stay with the father, after which the child was to be returned to the mother. More than a month had passed, but the child had not been handed back.
The judges said they were of the prima facie view that the father had breached the assurance given before the Family Court by failing to return the child.
Expressing concern over the dispute, the Bench remarked:
“It is unfortunate that the child is being treated like a pawn in the hands of the parents.”
The High Court clarified that its observations should not influence the execution proceedings pending before the Family Court.
The Bench also directed the Child Welfare Officer to submit a social investigation report before the Family Court to assist in future decisions concerning the child’s welfare.
In addition, the court directed the circulation of child custody and parental access guidelines to Family Courts and other relevant courts across Kerala until formal rules are framed.
Keeping the welfare of the child as the paramount consideration, the Kerala High Court held that the child should be returned to the mother, who would continue as the child's guardian unless the Family Court modified its earlier order.
The child, who was present before the court, was handed over to the mother in court itself, and the writ petition was disposed of.
Case Details:
Case Title: Hayarunisa Abdul Hakkim v. Director General of Police & Ors.
Case Number: WP(Crl.) No. 820 of 2026
Judges: Chief Justice Soumen Sen and Justice Syam Kumar V.M.
Decision Date: June 1, 2026
