CRWP-8234 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND 264 Surabhi Bhasin State of Punjab CORAM: HON'BLE MRS. JUSTICE Present:- MANISHA BATRA, J. 1. 226 of the Constitution of Indi habeas corpus for obtaining the custody of Bhasin, who Bhasin. 2. marriage of the petitioner was solemnized with respondent No. Bhasin on one male child (alleged detenue) 07.04.2020 respondent No. 4 by him. Ultimately, she was thro requested to respondents No. 4 and 5 to give her the custody of the child but 8234-2024 (O&M) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Surabhi Bhasin Versus Punjab and others CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Mr. Vivek K. Thakur, Advocate for the petitioner. Ms. Swati Batra, Deputy Advocate General, Punjab. Mr. Deepak Sabherwal, Advocate for respondents No. 4 and 5. MANISHA BATRA, J. (Oral) The present petition has been filed of the Constitution of India seeking issuance of writ in the nature of habeas corpus for obtaining the custody of , who is alleged to be in illegal custody of respondent No. Brief facts of the case as set up by the petitioner marriage of the petitioner was solemnized with respondent No. 21.04.2019 as per Hindu rites and rituals one male child (alleged detenue), namely 07.04.2020. However, the matrimonial relation of the respondent No. 4 witnessed rough weather as she was harassed and maltreated by him. Ultimately, she was thrown out of the matrimonial house. She requested to respondents No. 4 and 5 to give her the custody of the child but - IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRWP-8234-2024 (O&M) Date of decision: 02.04.2025 ...Petitioner Versus ...Respondents MANISHA BATRA Vivek K. Thakur, Advocate Ms. Swati Batra, Deputy Advocate General, Punjab. Mr. Deepak Sabherwal, Advocate for respondents No. 4 and 5. The present petition has been filed by the petitioner under Article a seeking issuance of writ in the nature of habeas corpus for obtaining the custody of her minor son namely Shivansh custody of respondent No.4-Ashish as set up by the petitioner are that the marriage of the petitioner was solemnized with respondent No. 4-Ashish 21.04.2019 as per Hindu rites and rituals. Out of the said wedlock, , namely Shivansh Bhasin, was born on . However, the matrimonial relation of the petitioner with witnessed rough weather as she was harassed and maltreated out of the matrimonial house. She requested to respondents No. 4 and 5 to give her the custody of the child but -1- 2024 (O&M) 02.04.2025 ...Petitioner ...Respondents under Article a seeking issuance of writ in the nature of namely Shivansh Ashish are that the Ashish lock, born on petitioner with witnessed rough weather as she was harassed and maltreated out of the matrimonial house. She requested to respondents No. 4 and 5 to give her the custody of the child but MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 they did not do so. No. 4 and Class in Christ King Convent School at Kapurthala but respondent No. 4 is not sending him school now. He is a wanted criminal and is absconding as he has recently been arraigned as an accused in a case bearing GD No. 041 dated 14.12.2024 Station City Kapurthala. 3. No. 4 has forcibly taken the custody of the minor the act of respondent No. 4 the petitioner as well as child company of petition agains pending. While child and not maintaining him properly be issued for release counsel for the petitioner has relied upon the judgments of this Court rendered in Kamaldeep Kaur vs. State of Haryana and others : 2024 SCC Online P&H 8923, Rashneet Kaur vs. State of Haryana and others : 2022 SCC Online P&H 4267 Punjab and others Mandeep Kaur vs. State of Punjab and others CRWP-3013 on 01.06.2020. 8234-2024 (O&M) they did not do so. The petitioner tried to prevail good sense upon respondent 4 and 5 but they did not mend their ways. Class in Christ King Convent School at Kapurthala but respondent No. 4 is not sending him school now. He is a wanted criminal and is absconding as he has recently been arraigned as an accused in a case bearing GD No. 041 dated 14.12.2024 registered under Section 118(1) and 118(2) of BNS, 2023 at Police Station City Kapurthala. Learned counsel for the petitioner has has forcibly taken the custody of the minor the act of respondent No. 4 is not only illegal but also amounts to cruelty to e petitioner as well as child as he was of company of his mother for his upbringing. The petitioner had filed a divorce petition against respondent No. 4 before the While submitting that respondent No. 4 child and not maintaining him properly, it is urged that a writ of habeas corpus be issued for release of the alleged detenue counsel for the petitioner has relied upon the judgments of this Court rendered Kamaldeep Kaur vs. State of Haryana and others : 2024 SCC Online P&H 8923, Rashneet Kaur vs. State of Haryana and others : 2022 SCC &H 4267, CRWP-9996-2020, titled as Punjab and others, decided on 02.03.2021, Mandeep Kaur vs. State of Punjab and others 3013-2020, titled as Neha vs. State of Haryana and o on 01.06.2020. - The petitioner tried to prevail good sense upon respondent ways. The child was studying in LKG Class in Christ King Convent School at Kapurthala but respondent No. 4 is not sending him school now. He is a wanted criminal and is absconding as he has recently been arraigned as an accused in a case bearing GD No. 041 dated ered under Section 118(1) and 118(2) of BNS, 2023 at Police Learned counsel for the petitioner has submitted that respondent has forcibly taken the custody of the minor child from the petitioner is not only illegal but also amounts to cruelty to he was of tender age and needed the care and upbringing. The petitioner had filed a divorce t respondent No. 4 before the competent Court, which is submitting that respondent No. 4 is mistreating the minor it is urged that a writ of habeas corpus of the alleged detenue. To fortify his argument, learned counsel for the petitioner has relied upon the judgments of this Court rendered Kamaldeep Kaur vs. State of Haryana and others : 2024 SCC Online P&H 8923, Rashneet Kaur vs. State of Haryana and others : 2022 SCC , titled as Ramita Rani vs. State of , decided on 02.03.2021, CRWP-8319-2020, titled as Mandeep Kaur vs. State of Punjab and others, decided on 10.05.2021 and Neha vs. State of Haryana and others, decided -2- The petitioner tried to prevail good sense upon respondents ying in LKG Class in Christ King Convent School at Kapurthala but respondent No. 4 is not sending him school now. He is a wanted criminal and is absconding as he has recently been arraigned as an accused in a case bearing GD No. 041 dated ered under Section 118(1) and 118(2) of BNS, 2023 at Police submitted that respondent and is not only illegal but also amounts to cruelty to tender age and needed the care and upbringing. The petitioner had filed a divorce competent Court, which is treating the minor it is urged that a writ of habeas corpus To fortify his argument, learned counsel for the petitioner has relied upon the judgments of this Court rendered Kamaldeep Kaur vs. State of Haryana and others : 2024 SCC Online P&H 8923, Rashneet Kaur vs. State of Haryana and others : 2022 SCC Ramita Rani vs. State of , titled as , decided on 10.05.2021 and , decided MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 4. therein and learned State counsel has by the petitioner on 03.07.2024 before the SHO concerned and on inquiry, it was found that a matrimonial dispute has arisen between the petitioner and her in-laws. It is further submitted that at the instance of resp bearing No. 182 dated 05.07.2024 has been registered against the petitioner and her family members on the allegations that on 03.07.2024, they had gone to the house of respondent No. 4 and had inflicted injuries on his person. However, anticipatory bail by the Court of learned Additional Sessions Judge, Kapurthala. 5. wherein while denying the allegatio submitted be stated to be in illegal custody of the maintainable child and r discharging his responsibilities properly. It is also submitted that even he had never caused any harassment to the petitioner and she had left the compa respondent out of her own free issues. The aforesaid GD has been registered as a cross case in the FIR got registered by respondent No. 4 against the petitioner and her family members. It is, thus, argued for respondent No. 4 has relied upon the authority of Hon’ble Supreme Court cited as Roxann Sharma vs. Arun Sharma : 2015 (2) RCR (Civil) 93 8234-2024 (O&M) Short reply has been filed by the respondent therein and learned State counsel has submitted that an application was moved by the petitioner on 03.07.2024 before the SHO concerned and on inquiry, it was found that a matrimonial dispute has arisen between the petitioner and her laws. It is further submitted that at the instance of resp bearing No. 182 dated 05.07.2024 has been registered against the petitioner and her family members on the allegations that on 03.07.2024, they had gone to the house of respondent No. 4 and had inflicted injuries on his person. the petitioner and other co-accused have been granted concession of anticipatory bail by the Court of learned Additional Sessions Judge, Kapurthala. Reply, on behalf of respondent wherein while denying the allegations as levelled by the petitioner, that since respondent No. 4 is natural father of the be stated to be in illegal custody of the child maintainable. It is submitted that respondent No. and rather, he is properly taking care of discharging his responsibilities properly. It is also submitted that even he had never caused any harassment to the petitioner and she had left the compa respondent out of her own free will as she used to quarrel with him on petty The aforesaid GD has been registered as a cross case in the FIR got registered by respondent No. 4 against the petitioner and her family members. It is, thus, argued that the petition is liable to be dismissed. for respondent No. 4 has relied upon the authority of Hon’ble Supreme Court Roxann Sharma vs. Arun Sharma : 2015 (2) RCR (Civil) 93 - has been filed by the respondent-State. It is submitted submitted that an application was moved by the petitioner on 03.07.2024 before the SHO concerned and on inquiry, it was found that a matrimonial dispute has arisen between the petitioner and her laws. It is further submitted that at the instance of respondent No. 4, an FIR bearing No. 182 dated 05.07.2024 has been registered against the petitioner and her family members on the allegations that on 03.07.2024, they had gone to the house of respondent No. 4 and had inflicted injuries on his person. accused have been granted concession of anticipatory bail by the Court of learned Additional Sessions Judge, Reply, on behalf of respondents No. 4 and 5, has also been filed, ns as levelled by the petitioner, it is is natural father of the child, he cannot child and the present petition is not t is submitted that respondent No. 4 has never mistreated the ather, he is properly taking care of him, being his father and is also discharging his responsibilities properly. It is also submitted that even he had never caused any harassment to the petitioner and she had left the company of will as she used to quarrel with him on petty The aforesaid GD has been registered as a cross case in the FIR got registered by respondent No. 4 against the petitioner and her family members. that the petition is liable to be dismissed. Learned counsel for respondent No. 4 has relied upon the authority of Hon’ble Supreme Court Roxann Sharma vs. Arun Sharma : 2015 (2) RCR (Civil) 93 -3- State. It is submitted submitted that an application was moved by the petitioner on 03.07.2024 before the SHO concerned and on inquiry, it was found that a matrimonial dispute has arisen between the petitioner and her ondent No. 4, an FIR bearing No. 182 dated 05.07.2024 has been registered against the petitioner and her family members on the allegations that on 03.07.2024, they had gone to the house of respondent No. 4 and had inflicted injuries on his person. accused have been granted concession of anticipatory bail by the Court of learned Additional Sessions Judge, , has also been filed, it is , he cannot and the present petition is not mistreated the father and is also discharging his responsibilities properly. It is also submitted that even he had ny of will as she used to quarrel with him on petty The aforesaid GD has been registered as a cross case in the FIR got registered by respondent No. 4 against the petitioner and her family members. Learned counsel for respondent No. 4 has relied upon the authority of Hon’ble Supreme Court Roxann Sharma vs. Arun Sharma : 2015 (2) RCR (Civil) 93 to MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 contend that the use of word ‘ordinarily’ in Section 6 of the Act, 1956 cannot be over-emphasized as it ordains a presumption, albeit a rebuttable one in favour of the mother. He has also relied upon a judgment rendered by the High Court of Allahabad in 258, wherein it was held that in Section 6 of the Act, 1956, the word ‘ordinarily’ does not mean ‘necessarily’. judgments rendered by this Court in others : 2022 (3) RCR (Civil) 262 and others : 2023 (3) RCR (Civil) 46 custody of the minor child with the father as a natural guardian cannot be said to be illegal or unlawful. 6. and have also gone through the record carefully. 7. and out of the wedlock, 07.04.2020 reasons best known to them, they started living separately. of the petitioner, child and is not Court for consideration is as to whether the custody of the minor child respondent No. 4 the nature of habeas corpus directing 8. been litigating for the custody of the minor child and a petition under the provisions of the Hindu Minority and Guardianship Act, 1956 8234-2024 (O&M) contend that the use of word ‘ordinarily’ in Section 6 of the Act, 1956 cannot emphasized as it ordains a presumption, albeit a rebuttable one in favour of the mother. He has also relied upon a judgment rendered by the High Court of Allahabad in Amit vs. Nirmal Sahu : 2009 (5) RCR (Civil) , wherein it was held that in Section 6 of the Act, 1956, the word ‘ordinarily’ does not mean ‘necessarily’. judgments rendered by this Court in Poonam Kalsi vs. State of Punjab and thers : 2022 (3) RCR (Civil) 262 and Manisha Gupta vs. State of Punjab and others : 2023 (3) RCR (Civil) 46, wherein it has been held that the custody of the minor child with the father as a natural guardian cannot be said to be illegal or unlawful. I have heard learned counsel for the parties at considerable length and have also gone through the record carefully. The petitioner was married to respondent No. and out of the wedlock, one male child (alleged detenue) was 07.04.2020. Since the relationship between the parties became sour, due to the reasons best known to them, they started living separately. of the petitioner, respondent No. 4 has forcibly taken the custody of the minor child and is not properly maintaining him. Court for consideration is as to whether the custody of the minor child respondent No. 4 can be stated to be illegal, warranting issuance of a writ in the nature of habeas corpus directing his release At the outset, it may be mentioned that the parties have already been litigating for the custody of the minor child and a petition under the provisions of the Hindu Minority and Guardianship Act, 1956 - contend that the use of word ‘ordinarily’ in Section 6 of the Act, 1956 cannot emphasized as it ordains a presumption, albeit a rebuttable one in favour of the mother. He has also relied upon a judgment rendered by the it vs. Nirmal Sahu : 2009 (5) RCR (Civil) , wherein it was held that in Section 6 of the Act, 1956, the word ‘ordinarily’ does not mean ‘necessarily’. He has also relied upon the Poonam Kalsi vs. State of Punjab and Manisha Gupta vs. State of Punjab , wherein it has been held that the custody of the minor child with the father as a natural guardian cannot be said I have heard learned counsel for the parties at considerable length and have also gone through the record carefully. The petitioner was married to respondent No. 4 on 21.04.2019 one male child (alleged detenue) was born Since the relationship between the parties became sour, due to the reasons best known to them, they started living separately. As per allegations respondent No. 4 has forcibly taken the custody of the minor properly maintaining him. The question that arises before this Court for consideration is as to whether the custody of the minor child with can be stated to be illegal, warranting issuance of a writ in release from his custody. At the outset, it may be mentioned that the parties have already been litigating for the custody of the minor child and a petition under the provisions of the Hindu Minority and Guardianship Act, 1956 (for short ‘Act, -4- contend that the use of word ‘ordinarily’ in Section 6 of the Act, 1956 cannot emphasized as it ordains a presumption, albeit a rebuttable one in favour of the mother. He has also relied upon a judgment rendered by the it vs. Nirmal Sahu : 2009 (5) RCR (Civil) , wherein it was held that in Section 6 of the Act, 1956, the word He has also relied upon the Poonam Kalsi vs. State of Punjab and Manisha Gupta vs. State of Punjab , wherein it has been held that the custody of the minor child with the father as a natural guardian cannot be said I have heard learned counsel for the parties at considerable length 21.04.2019 born on Since the relationship between the parties became sour, due to the As per allegations respondent No. 4 has forcibly taken the custody of the minor The question that arises before this with can be stated to be illegal, warranting issuance of a writ in At the outset, it may be mentioned that the parties have already been litigating for the custody of the minor child and a petition under the (for short ‘Act, MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 1956) is already pending before the jurisdictional Court. the Act, 1956 be with the mother. For ready reference, Section 6 of the Act, 1890 is reproduced below: 9. that the father of a minor is his natural guardian and it is only on his demise that the mother becomes the natural guardian. 10. of a writ in the nature of habeas corpus. Such writ is primarily issued calling upon a person order to let the Court to know on what ground a detenue has been confined and set him at lib once the Court comes to the conclusion that the detention is unlawful, the confinement cannot be permitted and consequently direction has to be issued to set the detenue at liberty. Bench judgment of the High Court of Madras others vs. The Dist. Collector and Dist. Magistrate, Thiruvallur District, Thiruvallur and Others 8234-2024 (O&M) is already pending before the jurisdictional Court. Act, 1956, the custody of a child under the age of 05 years shall ordinarily be with the mother. For ready reference, Section 6 of the Act, 1890 is reproduced below: “6. Natural guardians of a Hindu minor. The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl after him, the mother: provided that who has not completed the age of five years shall ordinarily be with the mother; On a bare reading of the above mentioned provision, it is clear that the father of a minor is his natural guardian and it is only on his demise that the mother becomes the natural guardian. The petitioner has invoked jurisdiction of this Court for is of a writ in the nature of habeas corpus. Such writ is primarily issued calling upon a person who had detained another to produce the detained individual in order to let the Court to know on what ground a detenue has been confined and set him at liberty if there is no legal justification for such detention. When once the Court comes to the conclusion that the detention is unlawful, the confinement cannot be permitted and consequently direction has to be issued to set the detenue at liberty. Reliance in this context can be placed upon a Full Bench judgment of the High Court of Madras others vs. The Dist. Collector and Dist. Magistrate, Thiruvallur District, Thiruvallur and Others, decided on 13.02.2001 in - is already pending before the jurisdictional Court. As per Section 6 of child under the age of 05 years shall ordinarily be with the mother. For ready reference, Section 6 of the Act, 1890 is Natural guardians of a Hindu minor.— The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily On a bare reading of the above mentioned provision, it is clear that the father of a minor is his natural guardian and it is only on his demise that the mother becomes the natural guardian. The petitioner has invoked jurisdiction of this Court for issuance of a writ in the nature of habeas corpus. Such writ is primarily issued calling who had detained another to produce the detained individual in order to let the Court to know on what ground a detenue has been confined erty if there is no legal justification for such detention. When once the Court comes to the conclusion that the detention is unlawful, the confinement cannot be permitted and consequently direction has to be issued in this context can be placed upon a Full Bench judgment of the High Court of Madras reported as Kuppammal and others vs. The Dist. Collector and Dist. Magistrate, Thiruvallur District, decided on 13.02.2001 in HCP Nos.11,41,66, -5- As per Section 6 of child under the age of 05 years shall ordinarily be with the mother. For ready reference, Section 6 of the Act, 1890 is The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family the father, and the custody of a minor who has not completed the age of five years shall ordinarily On a bare reading of the above mentioned provision, it is clear that the father of a minor is his natural guardian and it is only on his demise suance of a writ in the nature of habeas corpus. Such writ is primarily issued calling who had detained another to produce the detained individual in order to let the Court to know on what ground a detenue has been confined erty if there is no legal justification for such detention. When once the Court comes to the conclusion that the detention is unlawful, the confinement cannot be permitted and consequently direction has to be issued in this context can be placed upon a Full Kuppammal and others vs. The Dist. Collector and Dist. Magistrate, Thiruvallur District, HCP Nos.11,41,66, 76 MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 and 103 of 2 either unlawful or considered to be unlawful in cases where the detention is not authorised or under the shelter of any law or the detention law under which the detention ordered is void, whe detention is not the one specified or authorised in that behalf, where though the specified authority ordering detention is competent and also acts under a valid law yet if such authority had failed to follow the procedure that behalf and in some cases even when the authority had followed the procedure prescribed if action of said authority is vitiated by one or more of the defects or infirmity recognised in this respect by principles of administrative law such application of mind reason or like. 11. Jagdish Prasad Tiwari Hon'ble Supreme Court examine the legality of the custody through which the custody of the child is addressed to the discretion of the court. Habea and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme 8234-2024 (O&M) and 103 of 2000, wherein it was observed that the either unlawful or considered to be unlawful in cases where the detention is not authorised or under the shelter of any law or the detention law under which the detention ordered is void, whe detention is not the one specified or authorised in that behalf, where though the specified authority ordering detention is competent and also acts under a valid law yet if such authority had failed to follow the procedure that behalf and in some cases even when the authority had followed the procedure prescribed if action of said authority is vitiated by one or more of the defects or infirmity recognised in this respect by principles of administrative law such as abuse of power application of mind, arbitrariness or extraneous consideration or a fortiori reason or like. Reference can further be made to Jagdish Prasad Tiwari : (2019) 7 SCC 42 Hon'ble Supreme Court that habeas corpus proceeding examine the legality of the custody. Habeas corpus proceeding through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme - wherein it was observed that the confinement of a person is either unlawful or considered to be unlawful in cases where the detention is not authorised or under the shelter of any law or the detention law under which the detention ordered is void, where the authority who had ordered detention is not the one specified or authorised in that behalf, where though the specified authority ordering detention is competent and also acts under a valid law yet if such authority had failed to follow the procedure prescribed in that behalf and in some cases even when the authority had followed the procedure prescribed if action of said authority is vitiated by one or more of the defects or infirmity recognised in this respect by principles of abuse of power, mala fides, perversity, non extraneous consideration or a fortiori Reference can further be made to Tejaswini Gaud vs. Shekhar (2019) 7 SCC 42, wherein it was observed by abeas corpus proceeding is not to justify or abeas corpus proceeding is a medium through which the custody of the child is addressed to the discretion of the s corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the -6- confinement of a person is either unlawful or considered to be unlawful in cases where the detention is not authorised or under the shelter of any law or the detention law under re the authority who had ordered detention is not the one specified or authorised in that behalf, where though the specified authority ordering detention is competent and also acts under a prescribed in that behalf and in some cases even when the authority had followed the procedure prescribed if action of said authority is vitiated by one or more of the defects or infirmity recognised in this respect by principles of non- extraneous consideration or a fortiori s. Shekhar it was observed by is not to justify or is a medium through which the custody of the child is addressed to the discretion of the s corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody. In view of Court and the MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 High Courts, in our view, in child custody matters, the writ of habeas corpus 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. child custody matters, the following observations were further made by the Hon’ble Apex Court : 12. by the petitioner/mother, is below 05 years as he would be completing 05 years of age on 05 years is concerned, the mother take care of such child during his tender age. However, at the same time, the custody of a minor child with eit 8234-2024 (O&M) High Courts, in our view, in child custody matters, the writ of habeas corpus 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. tody matters, the following observations were further made by the Hon’ble Apex Court : “In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor exercise of extraordinary jurisdiction on a petition for habeas corpus.” In the present case, the age of the child, whose custody is sought by the petitioner/mother, is below 05 years as he would be completing 05 years of age on 07.04.2025. So far as the custody of the child below the age of 05 years is concerned, the mother per se is considered to be the best suited to take care of such child during his tender age. However, at the same time, the custody of a minor child with either of the natural guardians cannot said to be - High Courts, in our view, in child custody matters, the writ of habeas corpus 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. With regard to tody matters, the following observations were further made by the “In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for In the present case, the age of the child, whose custody is sought by the petitioner/mother, is below 05 years as he would be completing 05 07.04.2025. So far as the custody of the child below the age of is considered to be the best suited to take care of such child during his tender age. However, at the same time, the her of the natural guardians cannot said to be -7- High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a With regard to tody matters, the following observations were further made by the “In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the will be determined in exercise of extraordinary jurisdiction on a petition for In the present case, the age of the child, whose custody is sought by the petitioner/mother, is below 05 years as he would be completing 05 07.04.2025. So far as the custody of the child below the age of is considered to be the best suited to take care of such child during his tender age. However, at the same time, the her of the natural guardians cannot said to be MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document CRWP-8234 illegal. The child of the petitioner and respondent No. 4 is going to attain the age of 05 years as on 07.04.2025. With regard to rival claims of the parties that only one of them can look after the best inter ascertained before the jurisdictional Court dealing with the petition for custody of the child as such Court would be produced obviously complete opportunity to the contesting parties. In view of the discussion as made above, finding no merit in the petition, the same is dismissed. 02.04.2025 Waseem Ansari 8234-2024 (O&M) illegal. The child of the petitioner and respondent No. 4 is going to attain the age of 05 years as on 07.04.2025. With regard to rival claims of the parties that only one of them can look after the best inter ascertained before the jurisdictional Court dealing with the petition for custody of the child as such Court would be produced by the parties in support of the competing claims and would be more equipped to determine the welfare of the child by giving complete opportunity to the contesting parties. In view of the discussion as made above, finding no merit in the petition, the same is dismissed. 02.04.2025 Whether speaking/reasoned Whether reportable - illegal. The child of the petitioner and respondent No. 4 is going to attain the age of 05 years as on 07.04.2025. With regard to rival claims of the parties that only one of them can look after the best interest of the minor, can be ascertained before the jurisdictional Court dealing with the petition for custody of the child as such Court would be seized of the entire material to be by the parties in support of the competing claims and would be more equipped to determine the welfare of the child by giving complete opportunity to the contesting parties. In view of the discussion as made above, finding no merit in the petition, the same is dismissed. (MANISHA BATRA) JUDGE Yes/No Yes/No -8- illegal. The child of the petitioner and respondent No. 4 is going to attain the age of 05 years as on 07.04.2025. With regard to rival claims of the parties can be ascertained before the jurisdictional Court dealing with the petition for of the entire material to be by the parties in support of the competing claims and would be more equipped to determine the welfare of the child by giving complete opportunity to the contesting parties. In view of the discussion as MOHAMMAD WASEEM ANSARI 2025.04.05 10:43 I attest to the accuracy and integrity of this document