1 CGHC010301382026 2026:CGHC:34435-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPHC No. 21 of 2026 1 - Nuzhat Parveen Qureshi W/o Mohammad Aehfaz Qureshi, Aged About 28 Years, R/o Street No. 1, Sailaani Nagar, Police Station Tikrapara, Raipur, District Raipur, Chhattisgarh ... Petitioner versus 1 - State of Chhattisgarh Through The Secretary, Department of Home, Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District Raipur, Chhattisgarh 2 - Deputy Commissioner of Police, Raipur Commissionerate, District Raipur, Chhattisgarh 3 - Station House Officer (S.H.O), Police Station Tikrapara, Raipur, District Raipur, Chhattisgarh 4 - Station House Officer (S.H.O), Tehsil Police Station, Nanga Putla Chowk, Gandhibagh, Nagpur, Maharashtra 5 - Mohammad Aehfaz Qureshi S/o Mohammad Ashfaq Qureshi, Aged About 27 Years, R/o House No. 838, Nalsab Road, Near Qureshi Falahi Dispensary, Mominpura, Qasabpura, Jalauddin Masjid Street, Nagpur, District Nagpur, Maharashtra 6 - Firdaus Qureshi W/o Mohammad Ashfaque Qureshi, Aged About 43 Years, R/o House No. 838, Nalsab Road, Near Qureshi Falahi Digitally signed by MOHAMMED AADIL KHAN Date: 2026.08.13 14:16:48 +0530 2 Dispensary, Mominpura, Qasabpura, Jalauddin Masjid Street, Nagpur, District Nagpur, Maharashtra 7 - Mohammad Ashfaque Qureshi S/o Abdul Wahid Qureshi, Aged About 45 Years, R/o House No. 838, Nalsab Road, Near Qureshi Falahi Dispensary, Mominpura, Qasabpura, Jalauddin Masjid Street, Nagpur, District Nagpur, Maharashtra ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. R.S. Marhas, Senior Advocate with Ms. Manisha Tandon, Advocate. For State : Mr. Sumit Singh, Deputy Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 06.08.2026 1. The petitioner has filed the present writ petition seeking a writ of habeas corpus for production and custody of the minor child, and has prayed for the following relief(s):- “10.1. Issue an appropriate writ, order or direction in nature of Habeas Corpus directing the Respondent No. 5 to immediately produce the minor son of petitioner namely, Mohammad Ahad Qureshi, before this Hon'ble Court. 10.2. Issue an appropriate writ, order or direction declaring the custody of minor child namely, Mohammad Ahad Qureshi with Respondent No. 5 as unauthorized and illegal. 3 10.3. Issue an appropriate writ, order or direction directing the Respondent No. 5 to hand over the custody of the minor child namely, Mohammad Ahad Qureshi to the Petitioner being his biological mother and restrain the Respondent No. 5 from removing the minor child from jurisdiction of this Hon'ble Court. 10.4. Cost of the petition be also granted to the petitioner.” 2. Learned Senior Advocate appearing for the petitioner submits that the petitioner is the legally wedded wife of respondent No.5 and their marriage was solemnized on 02.06.2022 at Raipur in accordance with Muslim rites and customs. Out of their wedlock, a male child, namely, Mohammad Ahad Qureshi, was born on 14.03.2023 at Nagpur, who is presently aged about 3 years and 4 months. It is submitted that after the marriage, the petitioner and respondent No.5 initially resided at Nagpur with respondents No.6 and 7, the parents of respondent No.5, but owing to matrimonial discord between respondent No.5 and his parents, they shifted to Raipur. Thereafter, respondent No.5 subjected her to cruelty and abusive conduct, repeatedly pressurised her father to purchase a residential house and also compelled her to obtain loans in her own name on account of his adverse credit history. It is further submitted that on one occasion, respondent No.5 physically assaulted the petitioner by pushing her down the staircase, resulting in a fracture to her foot. Despite such conduct, the 4 petitioner and her family made efforts to preserve the matrimonial relationship and, with a view to rehabilitate respondent No.5, her father provided financial assistance for establishing a broiler house business. Consequently, a rent agreement dated 22.05.2025 was executed between respondent No.5 and Premlal Kureel and the business under the name and style of “Railish Broiler House” was commenced at Raipur, which was registered under the FSSAI on 18.06.2025. 3. He would further submit that on 08.03.2026, amidst escalating matrimonial disputes, respondent No.5, without the knowledge or consent of the petitioner, took away the minor child from her custody and removed him to Nagpur, where he is presently residing at the paternal home with respondents No.5 to 7. Despite repeated requests, the respondents have neither restored custody of the child to the petitioner nor permitted her meaningful access to or even telephonic communication with her minor son. It is submitted that the petitioner, being the biological mother of a child of tender age, has been forcibly deprived of his company, care and affection. The petitioner approached the jurisdictional police on 17.07.2026 by submitting a written complaint seeking registration of an FIR and restoration of custody, but no effective action was taken. It is, therefore, submitted that the continued retention of the minor child by respondents No.5 to 7 is illegal and contrary to his welfare. Under Sunni Muslim personal law, the mother is entitled to the hizanat (custody) of a male child of such 5 tender age, and, in any event, the welfare of the minor is the paramount consideration. The petitioner, therefore, seeks restoration of custody of the minor child, contending that his continued separation from his biological mother and denial of her access to him is detrimental to his emotional, psychological and overall welfare. In support of his submission, he would rely upon the judgment of the Hon’ble Supreme Court in “Vivek Kumar Chaturvedi and Another v. State of U.P. and Others” decided on 07.02.2025 in SLP (Crl.) No. 14809 of 2024, and “Sofiya Khan v. Riyaz Mohammad” decided on 07.11.2016 in W.P.H.C. 16 of 2016 by a coordinate bench of this Court. 4. We have considered the submissions of learned counsel for the petitioner and perused the material placed on record. 5. The undisputed factual position is that the petitioner is the legally wedded wife of respondent No.5 and their marriage was solemnized on 02.06.2022 according to Muslim rites and customs. A male child, namely, Mohammad Ahad Qureshi, was born out of their wedlock on 14.03.2023 and is presently aged about 3 years and 4 months. The petitioner alleges that after the parties shifted from Nagpur to Raipur, respondent No.5 subjected her to cruelty and abusive treatment and that, despite efforts made by her and her family to preserve the matrimonial relationship, disputes between the spouses continued. It is further alleged that on 08.03.2026 respondent No.5 took the minor child from the petitioner's custody, without her knowledge or consent, to Nagpur, 6 where the child is presently residing with respondent No.5 and respondents No.6 and 7, who are his paternal grandparents. The petitioner claims that despite her repeated requests, she has neither been given custody of the child nor permitted meaningful access or even telephonic communication with him. She also approached the police authorities on 17.07.2026, but no effective action was taken. On these facts, the petitioner seeks restoration of custody principally on the ground that, being the biological mother of a child of tender age and in view of the personal law applicable to the parties, she is entitled to his custody. 6. The question, however, before us is not merely whether the petitioner, as the mother, has a preferential claim to the custody of the minor under personal law. In proceedings concerning custody of a minor, the controlling consideration is always the welfare and best interest of the child. Even where a parent asserts a legal or personal-law right to custody, such right cannot be considered in isolation from the welfare of the minor. The Hon’ble Supreme Court has repeatedly held that the rights of the parents must yield to the paramount consideration of the welfare of the child. In Somprabha Rana and others v. State of Madhya Pradesh and others, (2024) 9 SCC 382, the Hon’ble Supreme Court reiterated that even in a habeas corpus proceeding concerning a minor, the High Court has discretion to decline interference where disturbing the existing custody would not be conducive to the welfare of the 7 child, and that parental rights cannot override the welfare of the minor. In para 9, it has been held that:- “9. After having perused various decisions of this Court, the broad propositions of settled law on the point can be summarised as follows: 9.1. Writ of habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy; 9.2. The High Court always has the discretion not to exer- cise the writ jurisdiction depending upon the facts of the case. It all depends on the facts of individual cases; 9.3. Even if the High Court, in a petition of habeas corpus, finds that custody of the child by the respondents was illegal, in a given case, the High Court can decline to exercise juris- diction under Article 226 of the Constitution of India if the High Court is of the view that at the stage at which the habeas corpus was sought, it will not be in the welfare and interests of the minor to disturb his/her custody; and 9.4. As far as the decision regarding custody of the minor children is concerned, the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking habeas corpus concerning a minor.” 7. Likewise, where determination of custody requires a detailed inquiry into the welfare of the child, the Hon’ble Supreme Court has held that such an exercise is appropriately undertaken in proceedings under the Guardians and Wards Act, 1890. 8 8. In the present case, the allegations made by the petitioner against respondent No.5 relate substantially to the matrimonial relationship between the parties. Whether respondent No.5 treated the petitioner with cruelty, the circumstances in which the minor was taken from Raipur to Nagpur, the respective circumstances in which the child has been residing thereafter, the suitability of either parent to have custody, the nature of care and affection being provided to the child and whether the child's welfare would be better served by placing him in the custody of the petitioner or respondent No.5 are all matters which would require an appropriate factual inquiry and appreciation of evidence. These questions cannot satisfactorily be determined in the present writ proceedings merely on the basis of competing assertions of the spouses. More importantly, the minor child should not be made an instrument for resolution of the matrimonial discord between his parents. The Court is required to ensure that the child does not become a casualty of the conflict between the parties and that neither parent uses the child's custody as a means of asserting a claim against the other parent. 9. In these circumstances, we are of the considered view that the rival claims of the petitioner and respondent No.5 with regard to custody and guardianship of the minor child are required to be adjudicated by the competent Court in appropriate proceedings under the Guardians and Wards Act, 1890, where the Court can undertake a comprehensive inquiry into the welfare and best 9 interest of the child and, if necessary, pass appropriate orders regarding custody as well as visitation and access to the child. The remedy under the said enactment is efficacious and enables consideration of all relevant circumstances which cannot appropriately be examined in the limited scope of the present proceedings. 10. In view of the foregoing discussion, we are not inclined to issue a writ of habeas corpus directing production and/or handing over of the custody of the minor child to the petitioner, as the dispute between the parties essentially relates to the custody of the minor arising out of their matrimonial discord and requires adjudication upon the welfare and best interest of the child. The petitioner shall, however, be at liberty to avail the remedy available to her under the Guardians and Wards Act, 1890 or any other remedy available in law for determination of the question of custody, guardianship and visitation. If any such proceedings are instituted, the competent Court shall consider the same independently, on their own merits and in accordance with law, uninfluenced by any observation made in the present order. 11. We further expect both the petitioner and respondent No.5 to act in a manner conducive to the welfare of the minor child and to ensure that the child is not made instrumental in, or adversely affected by, the matrimonial dispute between his parents. 12. The judgments relied upon by learned counsel for the petitioner are distinguishable on facts and do not advance the petitioner's 10 case. In Vivek Kumar Chaturvedi (supra), the Hon’ble Supreme Court exercised its jurisdiction having regard to the peculiar facts of that case, where the circumstances concerning the custody of the minor were materially different from the present case. Likewise, in Sofiya Khan (supra), the direction for handing over custody was issued in the facts obtaining therein and cannot be construed as laying down an absolute proposition that custody must invariably be transferred in a habeas corpus petition. In the present case, the claim for custody arises out of matrimonial discord between the petitioner and respondent No.5, both of whom are the biological parents of the minor child, and the question as to which parent would best serve the welfare of the child requires a proper factual inquiry. Thus, the aforesaid judgments, being distinguishable on their facts, are of no assistance to the petitioner. 13. Accordingly, the present habeas corpus petition is disposed of. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil