Punjab and Haryana High Court: In a petition, filed by the petitioner(‘mother’), under Articles 226 and 227 of the Constitution to direct the respondent(‘father’) to hand over the custody of their 4-year-old child, a Single Judge Bench of Sumeet Goel J., while dismissing the petition held that the writ of Habeas Corpus was not a substitute for meticulous and evidence-based determination of custody dispute and was not to be utilized as a subterfuge to circumvent the proper statutory forums and its exercise must be reserved for exceptional circumstances.
Further, considering that the mother was young with no antecedents with respect to Court proceedings, the Court refrained from imposing costs.
Background
In the present case, the mother and father were married in accordance with Sikh rituals in 2019 and in 2021, they had a male child. In 2024, the father had filed a petition under Section 13 of the Hindu Marriage Act, 1955 (‘HMA’) for dissolution of marriage, however, he withdrew it after four months. The mother had filed a petition under the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) for issuance of direction to the father to allow her to meet the child but it was declined. The order concerned was not challenged.
The mother had also instituted an application in January 2025, under Section 25 of the Guardians and Wards Act 1890 (‘GW Act’), seeking custody of the child which was still pending.
The present petition was filed contending that the mother was entitled to have custody, and the father was in wrongful custody of the child.
Issues, Analysis and Decision
1. Whether the jurisdiction of the High Court in Habeas Corpus writ petition could be invoked despite having statutory alternative remedy under relevant guardianship statutes?
The Court stated that Article 226 of the Constitution conferred plenary power upon the High Court to reach and undo injustice wherever found and the High Court should be satisfied regarding the existence of such injustice or arbitrariness. Further, the Court opined that the very amplitude of the writ jurisdiction demanded its exercise with due caution and certain self-imposed judicial restraint.
Considering the writ of Habeas Corpus, the Court stated that profound significance lies in its quintessential embodiment of a civilized society’s commitment to individual liberty, affirming the timeless resolve that liberty was an inherent right and not a privilege bestowed by the State. The Court further stated that the writ operated as a prerogative one and if the detaining authority, whether a public official or a private individual, failed to convince the Court that the deprivation of personal liberty was in strict conformity with the procedure established by law, the detained individual was instantly entitled to freedom.
Regarding cases involving custody of a minor child, the Court stated that two facets that should be significantly considered were:
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Whether the child’s current custody was unlawful or illegal?
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Whether the child’s welfare necessitated a change in existing custodial arrangement by entrusting the child to the care & custody of another?
The Court relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 and stated that the detention of a child by a person not legally entitled was deemed equivalent to an illegal detention for the purpose of granting writ of Habeas Corpus.
The Court further stated that the primary duty of the Court was to determine whether the child was being held without legal justification, as this foundational facet was what empowered the Court to intervene and issue the writ in the nature of Habeas Corpus.
The Court observed that in custody disputes, the conventional recourse was through the relevant guardianship statutes including Hindu Minority and Guardianship Act, 1956 and GW Act as they provided a comprehensive and structural process for the adjudication of custody matters involving thorough examination of evidence presented by the rival parties and adherence to established procedural norms.
Therefore, the Court opined that as a matter of general judicial discipline and restraint, a writ Court should ordinarily refrain from intervening as it would be to improperly arrogate to itself a jurisdiction that rightfully belonged to the Courts designated under those specific statutes.
The Court further held that when the foundational jurisdictional fact of child being in illegal custody was demonstrably established or such exercise of jurisdiction was warranted by welfare of the child only then the extraordinary jurisdiction of a writ Court should be invoked.
The Court opined that the writ of Habeas Corpus was not a substitute for meticulous and evidence-based determination of custody dispute and was not to be utilized as a subterfuge to circumvent the proper statutory forums and its exercise must be reserved for exceptional circumstances.
The Court stated that the principle that the welfare of a child was so paramount that, in appropriate cases, a writ Court while exercising its parens patriae jurisdiction could even relax the jurisdictional pre-requisite of child being kept in illegal/unlawful custody. The Court further stated that, in furtherance of such welfare the writ Court could issue interim orders concerning custody and other incidental aspects as warranted by exigencies of the situation.
The Court opined that no exhaustive set of guidelines to govern this jurisdictional aspect of the High Court could be laid down because to do so would be to crystallize into a rigid definition of judicial discretion, which for best of all be left undetermined.
2. Whether the mother should be awarded custody of the child or not?
Considering that the mother had already instituted an application seeking custody of the child from the father and still she filed application for visitation rights which were declined, the Court held that there was no justification at the end of the mother as to why this Court ought to exercise its extra ordinary power under writ jurisdiction despite her having earlier filed an application for primarily the same relief. Thus, The Court dismissed the petition.
Further, considering that the mother had not disclosed the above-mentioned facts and that she had attempted to deviate from the truth upon asking, the Court opined that she deserved to be deprecated. The Court refrained from imposing costs upon her because she was 26 years old with no antecedents with respect to such concealment in Court proceedings.
[Veerpal Kaur v. State of Punjab, CRWP No. 6232 of 2025, decided on 27-8-2025]
Advocates who appeared in this case :
For the Petitioner: Chetan Goyal, Advocate
For the Respondent: Gurpartap Singh Bhullar, AAG Punjab and Siddharth Gupta, Advocate
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