Father lost wife to Covid, aunts took his baby — court says give her back

His wife died when their daughter was 10 days old. He handed the baby to his sisters-in-law — temporarily. Then they disappeared with her to a village.

Gautam Kumar Das lost his wife to Covid-19. Then he buried his father. In the middle of two funerals — the weight of grief pressing down on him — he made a decision that seemed sensible at the time: he gave his infant daughter and his young son to his sisters-in-law. A temporary arrangement. The son came back. The daughter never did.

The courtroom fell silent as the father described the day his sisters-in-law took the baby to a remote village in West Bengal. The file in his hands felt thin — too thin to contain the weight of two years without his child.

The aunts vanished with the baby

The sisters-in-law — the maternal aunts of the child, being the sisters of the deceased wife — refused to return the girl. They took her to a remote village in West Bengal and cut off all contact. The father remarried. He filed legal papers. He did what any parent would do — he went to court to get his child back.

But the Delhi High Court, on April 3, 2024, told him something he did not expect: go to a family court first. File a guardianship petition there. The High Court said it would not use its habeas corpus power (a court order that asks: where is this person, and is their detention legal) to decide custody. That, the High Court said, was a matter for the family court.

The father did not agree. He went to the Supreme Court.

The question that would decide every such case

Could a father who is the natural guardian of his child use habeas corpus to get her back from relatives who have no legal right to keep her? Or must he first go through the long process of a family court guardianship case?

The answer would decide not just this father's case, but every parent in India whose child is held by a relative without legal authority.

What the law says about who gets the child

Section 6 of the Hindu Minority and Guardianship Act, 1956 (the law that defines who is a child's natural guardian) says the father is the natural guardian of a Hindu minor. The mother comes next. The aunts — the maternal aunts — do not appear anywhere in that list.

The father argued: I am the natural guardian. The aunts have no legal authority. They are detaining my daughter without any court order. This, he said, was exactly the kind of illegal detention that habeas corpus under Article 226 of the Constitution (the High Court's power to issue orders to secure a person's freedom) was meant to fix.

The aunts argued differently. They said they had raised the girl for years. She was bonded to them. The father had given her to them voluntarily. A habeas corpus petition, they said, was the wrong tool — the father should go to family court and prove he was a fit parent.

Why the High Court said no

The Delhi High Court agreed with the aunts. It disposed of the father's habeas corpus petition on April 3, 2024, and directed him to approach the family court. The High Court essentially said: this is a custody dispute, not an illegal detention case. Go through the proper channel.

But the father saw a problem. The family court process takes months, sometimes years. Meanwhile, his daughter remained in a remote village with relatives who had already shown they would not return her voluntarily. Every day she spent there, the bond with her natural family weakened.

What the Supreme Court decided

The Supreme Court reversed the High Court in a crisp judgment delivered on August 20, 2024. The bench — Justice B.R. Gavai and Justice K.V. Viswanathan — held that the father, as natural guardian under Section 6, was fully justified in invoking habeas corpus. He did not need to be sent to family court first.

The court relied on its own precedent in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), where it had held that a natural guardian can use habeas corpus to recover a child from persons who have no legal authority over the child. The principle is simple: if the person holding the child has no legal right, the detention is illegal, and habeas corpus is the right remedy.

The court also looked at the child's welfare. The father was fit — well-educated, economically stable, and remarried, meaning the girl would have female care. During court-ordered visitation, the child had bonded well with her father's family. The aunts, on the other hand, lived in a remote village. The court found that "the paramount welfare of the child is best served by living with the natural family."

During one of those court-ordered visits, the child reached for her father's hand without hesitation. That small gesture, the court noted, spoke louder than any legal argument.

The central reasoning the court gave

The court made two key points. First, the fact that the aunts had looked after the child for a few years did not give them any legal right. Temporary custody due to unfortunate circumstances — a mother's death, a father's grief — does not become permanent custody. The natural guardian's right remains paramount, subject only to the welfare of the child.

Second, the court said that sending the father to family court would defeat the purpose of habeas corpus. If a natural guardian has to go through ordinary civil proceedings every time a relative refuses to return a child, then the remedy of habeas corpus becomes meaningless. The High Court should have used its power under Article 226 to decide the matter then and there.

The court also cited several key precedents to reinforce its reasoning. It relied on Rosy Jacob v. Jacob A. Chakramakkal (1973), which held that the welfare of the child is the paramount consideration in custody matters, not the strict legal rights of the parties. It cited Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor (1981), which affirmed that the court must consider the child's physical and emotional well-being above all else. It drew on Nirmala v. Kulwant Singh and Others (2024), a recent judgment that reiterated the same principle. And it relied on Athar Hussain v. Syed Siraj Ahmed and Others (2010), which held that a natural guardian's right cannot be defeated by a relative's long-term care without legal authority.

All five precedents pointed in the same direction: the child belongs with her natural family, unless that family is demonstrably unfit.

What this means for parents and practitioners

This judgment is a clear message to High Courts across India: do not relegate natural guardians to family court when they come with a habeas corpus petition against relatives who have no legal authority. The remedy exists for a reason. Use it.

THE PLAY: If you are a natural guardian and a relative refuses to return your child, file a habeas corpus petition in the High Court — do not let the court send you to family court first.

The order that brought a daughter home

The Supreme Court quashed the High Court's order. It directed the aunts to hand over the custody of the minor child, Sugandha Das, forthwith. The aunts were given visitation rights — every Wednesday between 4:00 pm and 6:00 pm at the father's residence.

The father got his daughter back. Not because he was a perfect parent, but because the law said he was the natural guardian, and no one else had a better claim.