Habeas Corpus Cannot Enforce Ex Parte Custody Order Obtained Without Notice to Mother, Rules Andhra Pradesh High Court

The Andhra Pradesh High Court dismissed a father's habeas corpus petition seeking enforcement of a Family Court custody order, finding it was obtained ex parte by furnishing his own address as the mother's address, thereby denying her any notice of the proceedings.

The High Court of Andhra Pradesh at Amaravati has dismissed a writ petition for habeas corpus filed by a father seeking custody of his six-year-old son on the basis of a Family Court order dated 5 June 2025. The Division Bench of Justice Ravi Nath Tilhari and Justice Subhendu Samanta, pronouncing the order on 24 June 2026, held that a writ of habeas corpus cannot be used to enforce a custody order that was passed ex parte, without any notice to the mother, and whose correctness remains under challenge in pending proceedings before the Family Court itself. The bench also found, from the petitioner's own documents, that he had furnished his personal address as the mother's address in the Family Court petition, effectively ensuring she received no summons.

The Custody Order and the Habeas Corpus Petition

The petitioner, Ogirala Venkata Sai Sunil Manohar, a resident of RTC Colony, Patamata, Vijayawada, filed F.C.O.P. No. 207 of 2025 before the Additional Family Court-cum-XIV Additional District and Sessions Judge, Vijayawada, under Section 25 of the Guardians and Wards Act, 1890. He sought appointment as guardian and restoration of custody of the minor son, Ogirala Narasimha Sakthidhar, then aged about six years, who was living with his mother, the fourth respondent.

The Family Court allowed the petition by its judgment dated 5 June 2025, appointing the petitioner as guardian and directing the mother to hand over custody of the minor within 60 days. The operative portion of that order reads: “the Respondent/Mother is directed to handover the custody of minor child viz., Ogirala Narasimha Sakthidhar to the petitioner/father within 60 days from the date of order.”

When the mother did not comply, the father filed W.P. No. 36437 of 2025 by way of a writ of habeas corpus under Article 226 of the Constitution, contending that the child's continued stay with the mother had become illegal in view of the custody order, and that no other effective remedy, including execution, was open to him.

The Mother's Response: Wrong Address, No Notice

Sri Narasimha Rao Gudiseva, counsel for the fourth respondent-mother, raised a threshold objection. He submitted that F.C.O.P. No. 207 of 2025 was an ex parte proceeding because the address mentioned for the respondent-mother in that petition was not her address at all. It was, in fact, the petitioner's own address: D.No. 8-78/4, near Saibaba Temple, Srinivasa Nagar, Opp. Priya Foods, Poranki, Vijayawada.

This was demonstrated from Annexure-P3 in the writ petition itself — a complaint filed by the petitioner — in which he had given that very address as his own. The mother, counsel submitted, had been residing in Bengaluru, Karnataka, and not at that Vijayawada address. As a result, no notice of the guardianship proceedings reached her, and the order of 5 June 2025 was passed entirely behind her back.

Counsel further pointed out that the petitioner had, on the same date and from the same court, also obtained an ex parte decree of divorce in F.C.O.P. No. 201 of 2025, again by furnishing the same wrong address for the mother. In his own averments in the divorce petition, the petitioner had stated that the mother had left the matrimonial home in April 2022 and had been staying at her parents' house. Despite knowing she was not at the Poranki address, neither her parental address nor her Bengaluru addresses were disclosed in either petition.

The mother had filed I.A. Nos. 25 and 26 of 2026 before the Family Court, seeking condonation of delay and setting aside of the ex parte custody order respectively. Both applications were pending at the time of the High Court's decision.

Petitioner's Reliance on Tejaswini Gaud

Sri V. Ravindhar, counsel for the petitioner, placed heavy reliance on the Supreme Court's judgment in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari, reported at 2019 (7) SCC 42. He argued that habeas corpus is the appropriate remedy in child custody matters where detention of the minor is illegal and without authority of law, and that the order of 5 June 2025 rendered the mother's continued custody illegal. He also submitted that the remedy of execution was not available in such cases and that the applications for setting aside the custody order had been pending for about six months without any orders being passed.

The bench examined paragraph 19 of Tejaswini Gaud closely. That paragraph holds that habeas corpus proceedings are “a medium through which the custody of the child is addressed to the discretion of the Court” and that the writ is maintainable “where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.” The bench accepted this as the governing proposition, but found that it could not assist the petitioner on the facts of this case.

How the Bench Reasoned

The bench framed the precise question for consideration as whether the custody order dated 5 June 2025 passed in F.C.O.P. No. 207 of 2025 could be directed to be implemented or enforced through a writ of habeas corpus.

It then turned to Nithya Anand Raghavan v. State of NCT of Delhi and another, reported at 2017 (5) ALD 145 (SC), which the bench found equally instructive. That judgment holds that the High Court must first examine at the threshold whether the minor is in lawful or unlawful custody. Where the private respondent is the biological mother, a presumption of lawful custody arises. The writ of habeas corpus, it was emphasised, “cannot be used for mere enforcement of the directions given by the court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.”

From Somprabha Rana and others v. State of Madhya Pradesh and others, reported at (2024) 9 SCC 382, the bench drew four settled propositions: that habeas corpus is a prerogative, extraordinary, and discretionary writ; that the High Court may decline to exercise jurisdiction depending on facts; that even if custody is technically illegal the court may decline to disturb it if welfare of the child so requires; and that the only paramount consideration in child custody matters is the welfare of the minor.

Applying these principles, the bench identified what it described as a clear pattern from the petitioner's own documents. The address furnished for the mother in F.C.O.P. No. 207 of 2025 matched the petitioner's own address as he had given it in a separate complaint document filed as Annexure-P3. In the divorce petition F.C.O.P. No. 201 of 2025, the petitioner had himself pleaded that the mother had left the matrimonial home in April 2022 and was living at her parents' house, yet neither the parental address nor any of the Bengaluru addresses — which were listed in a legal notice the petitioner's own counsel sent in December 2025 — were disclosed in either Family Court petition.

The legal notice of 23 December 2025 sent after the Family Court orders discloses the mother's Aadhaar-recorded address as being in Bommenahalli, Bengaluru, Karnataka, along with two other Bengaluru addresses. None of these appeared in the Family Court filings. The bench found this sufficient, on a prima facie view, to conclude that the order was obtained without due service on the mother.

The bench also addressed the argument built on A.V. Papayya Sastry and Others v. Government of A.P. and others, reported at 2007 Supreme (SC) 304, which counsel for the mother relied upon for the proposition that a judgment obtained by fraud on the court is a nullity and non-est in the eye of law. The bench accepted the general legal position from that case without requiring it to go that far: the simpler ground — that the order was ex parte, without notice, and subject to a pending application for setting aside — was itself sufficient to refuse the writ.

On Section 43 of the Guardians and Wards Act, 1890, the bench held that the statutory framework is not silent on enforcement. Section 43 expressly provides for enforcement of guardianship orders in case of disobedience, in the same manner as an injunction under the Code of Civil Procedure. It therefore rejected the petitioner's submission that no statutory remedy for enforcement exists.

Why the Writ Was Refused

The bench recorded four interlocking reasons for declining to issue the writ.

First, the custody order dated 5 June 2025 was passed ex parte, without any effective notice to the mother, because the petitioner had furnished his own address as hers. Second, the order has not attained finality since the mother's applications to set it aside are pending before the Family Court. Third, the custody of a minor with her biological mother carries a presumption of lawfulness, and only in exceptionable circumstances may a writ court disturb that custody. Fourth, a statutory remedy under Section 43 of the Act, 1890 is available for enforcement, and habeas corpus cannot be deployed to convert the High Court into an executing court.

The bench made clear that it was not making any final observation on the correct address of the mother or on the merits of the underlying dispute. Its conclusion was confined to the habeas corpus petition before it.

Order

The Division Bench dismissed W.P. No. 36437 of 2025 with no order as to costs. All pending interlocutory applications were directed to stand closed. The order was pronounced on 24 June 2026 by Justice Ravi Nath Tilhari, with whom Justice Subhendu Samanta concurred, and was marked as a speaking, reasoned, and reportable order.