CASE NAME: Kinjal D/O Hareshkumar Panchal Vs. State Of Gujarat & Ors
CASE NO.: Special Criminal Application (Habeas Corpus) No. 471 of 2026
COURT: High Court of Gujarat
DATE: 11-02-2026
QUORUM: Justice N.S. Sanjay Gowda & Justice D.M. Vyas
FACTS:
On 1-12-2020; the petitioner Kinjal got married to Bhavik Hasmukhbhai Panchal and on 13-12-2021 they had a baby daughter named Trishika. On 11-5-2024 Kinjal left the matrimonial home and went to her parental home in Palanpur with her 3 year old daughter due to some marital rifts between the husband and the wife. Concerning the rifts going on between the two the husband tried to call Kinjal a lot of times and even called Kinjal’s mother due to ignorant behavior of Kinjal. To settle the dispute between the two; on 27-6-2025 a community (samaj) meeting was fixed to solve the issues between them but Kinjal didn’t attend the meeting. Another date was fixed for the meeting which was 11-2-2025. On 2-7-2025 Kinjal withdrew the admission of her daughter from her school named Podar International School. And then on 10-7-2025 Kinjal wrote a letter to Trishika’s school seeking refund of the fees stating the reason “due to my divorce” which also became an important part of the evidence.
On 11-7-2025 another community meeting took place where a notarized separation deed was executed. In which Bhavik claimed that the marriage got dissolved according to the customs and culture and the custody of the child was handed over to him. Here, Kinjal claimed that the she was being deceived into signing the document and her in-laws said that the custody of the child will be given back to her if she signs the document. Later on September 2025 a draft divorce petition under section 13B of the Hindu Marriage Act, 1955 was prepared. The draft said that the couple took the mutual consent under the section and was stated that the custody of the child would go the husband after the divorce decree gets passed from the court. This meant that according to the draft agreement the custody of the child would only go to the father after the divorce decree gets passed from the court which in real was never passed. To get the custody of the daughter back; Kinjal initiated the pre-litigation process and on 24-12-2025 she filed a complaint stating fraud in the separation deed an the illegal taking of her child Trishika. She approached the high court with the petition of Habeas Corpus to produce the child who’s been kept illegally in the custody.
ISSUES:
- Can the High Court decide child custody in Habeas Corpus jurisdiction?
- Was father’s custody lawful based on the Separation Deed dated 11.07.2025?
- Should custody be handed back to the mother?
LEGAL PROVISIONS:
- A) Hindu Minority and Guardianship Act, 1956
Section 6(a) – Natural guardian of minor girl is father, but custody of child below 5 years shall ordinarily be with mother.
Section 13 – Welfare of minors is paramount consideration.
(B) Guardians and Wards Act, 1890
Section 17 – Court must consider welfare of child while appointing guardian.
(C) Hindu Marriage Act, 1955
Section 13B – Divorce by mutual consent (requires decree from court; 6-month cooling period).
ARGUMENTS:
APPELANT:
Kinjal argued that she had the custody of the baby since 2024 when she moved out to her parental home. The father never objected or filed regarding the custody of the baby. And the plaintiff claimed that the documents were signed fraudulently and that she was told that the custody of the child would still be with her. Later the child was taken away by the father based on the signed deed. The child had lived with the other for more than a year and the mother was the primary caregiver of the child. Hence she filed the suit of Habeas Corpus. The plaintiff argues that she has been taking care of the child since she has left the home and the welfare of the child would be better served if the custody is given to her.
RESPONDENT:
Bhavik argued based on the separation deed claiming that according to the signed deed; he is eligible to get the custody of the child. He even mentioned the letter that Kinjal wrote to the principal of Trishika’s school for the refund of the fees stating the reason of DIVORCE in that letter. And the claim of the plaintiff regarding the custody being illegal mentioned in the petition of Habeas Corpus is not relevant as the father is considered as the first natural guardian of the child (unmarried daughter and son). And hence the custody of Trishika by Bhavik is not illegal. He mentioned that the proper remedy available to the plaintiff is to go through the procedure of civil courts or family courts for the custody of the child from the husband. He even claimed that he would be able to assist the child better in terms of finances if the custody is given to him
ANALYSIS :
The court carefully examined the documents and the proofs that were submitted by both the parties and observed that the child was living with the mother from May 2024 till July 2025 and during the entire period the father had not taken any legal actions for the custody of the child. This indicated that the mother was the primary caretaker of the baby. The court examined the deed signed on 11-2-2025 by both the parties which the father relied on. On these documents the court found several suspicious factors emerging. Factors such as the letter that was sent to the principal claiming refund based on the aspect of divorce whereas the committee meeting scheduling the meeting a day after the letter was sent raises questions of reliability. This imposes that the petitioner referred to divorce even before the alleged separation deed was executed. This raised serious doubts on the claims made by the husband. The court also analyzed that the meetings were also being scheduled by the samaj regarding the resolution of the rifts and hence came to the conclusion that the issue like the custody of the child was being solved in just one meeting suddenly. The court also reviewed the documents and found some irregularity in them considering the fonts and the space that was being given, concluding certain points were being inserted later on after the completion of the separation deed process. And in the case of child custody the main aspect that is followed is the welfare of the child. Even if the document exists regarding the custody of the child; it is still the welfare of the child that is being considered.
JUDGMENT
The court held that according to the Guardians and Wards Act the child below the age of 5 years should still be with the mother as she is a prominent pillar of care a child needs. And the judge has the power to maintain the writ of habeas corpus based on the facts and the situation of the case. Here the court maintained the writ of habeas corpus and considered mother as a good fit for the care of the child in the initial time. And if the father wants to again fight for the custody of the child they can appeal the civil and family courts.
CONCLUSION
It’s been concluded from all the facts that the paramount consideration a court looks into is the welfare of the child and sees who is better for the development of the child. No document would be taken as the first priority in front of the welfare of the child.
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WRITTEN BY: MEENAKSHI DANGI
