CRWP-8108-2026 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 163 CRWP-8108-2026 Date of decision: 09.07.2026 SURENDRA ARSE AND ANOTHER ... PETITIONERS Versus STATE OF PUNJAB AND OTHERS … RESPONDENTS CORAM : HON'BLE MR. JUSTICE H.S. GREWAL Present:- Mr. M.S. Saini, Advocate for the petitioners. Mr. Subhash Godara, Addl. A.G., Punjab. *** H.S. Grewal, J.(Oral) 1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of habeas corpus directing the official respondents to get released the detenue, namely, Master Shubhyank Arse aged about 04 years (son of the petitioner No.1) from the illegal custody of respondent No.4. 2. Learned counsel for the petitioners submits that petitioner No.1 was falsely implicated in a case of dowry death pertaining to the alleged suicide committed by his wife, pursuant to which petitioner No.1 was taken into police custody. It is submitted that initially, the custody of the minor child was handed over to his maternal grandmother for taking care of him, with the consent of the petitioners. However, thereafter, the maternal grandmother took the child to Punjab and handed over his custody to respondent No.4, who is her SONIA GUGNANI 2026.07.20 15.25 I attest to the accuracy and integrity of this document Chandigarh CRWP-8108-2026 -2- daughter and sister-in-law of petitioner No.1. It is further submitted that the petitioners came to know about the said fact only after petitioner No.1 was enlarged on bail and received summons in the proceedings initiated by respondent No.4 under Section 8 of the Guardians and Wards Act. Thereafter, petitioner No.1 moved an application seeking custody of the minor child being his biological father and natural guardian. The said proceedings are presently pending consideration before the learned Principal Judge, Family Court, Kharar. Learned counsel also submits that petitioner No.1 is the father and petitioner No.2 is the grandmother of the minor child and both are financially sound and fully capable of taking care of the child. Therefore, they seek custody of the minor child. 3. I have considered the submissions made by learned counsel for the petitioners and have gone through the case file. 4. This Court has noticed an increasing tendency amongst disgruntled parents and other family members to move a writ petition in the nature of habeas corpus, in order to settle custody of the children. A two Judge Bench of the Hon’ble Apex Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari’, 2019 AIR SC 2318, has observed as follows:- “18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium 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 by a person who is not entitled to SONIA GUGNANI 2026.07.20 15.25 I attest to the accuracy and integrity of this document Chandigarh CRWP-8108-2026 -3- his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the 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. 19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and 14 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 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 will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.” 5. The issue before the Court is whether habeas corpus can be used as an alternative to a guardianship order when it comes to deciding custody of a child. Habeas corpus is usually applied to secure the release of a person unlawfully detained, but it can also be used to ensure a child's safety and protection. However, habeas corpus does not involve the detailed inquiry into welfare and best interest that is central to guardianship proceedings. Therefore, while habeas corpus can serve as a means of temporary custody, it does not replace the comprehensive process of guardianship under the relevant statute. 6. Considering the facts on record and the settled legal principles, this Court is of the opinion that though the availability of an alternative remedy SONIA GUGNANI 2026.07.20 15.25 I attest to the accuracy and integrity of this document Chandigarh CRWP-8108-2026 -4- is not an absolute bar to the issuance of a writ of Habeas Corpus, disputes between natural guardians are best examined by the Court of Guardians and Wards, which is vested with the jurisdiction and expertise to determine the welfare of the child and to provide both parties a full opportunity to present their claims and lead evidence. 7. Moreover, where such remedies exist, the Writ Court must exercise restraint, as contested factual issues are more appropriately resolved through detailed proceedings before the competent forum. In the present case, the proceedings are already pending consideration before the learned Principal Judge, Family Court, Kharar. Therefore, no circumstance has been established that would warrant intervention by this Court through a writ of Habeas Corpus. Accordingly, the same being devoid of merit, is hereby dismissed with liberty to the petitioners to avail alternative remedy, in accordance with law. (H.S. GREWAL) JUDGE July 09, 2026 Sonia Whether speaking/reasoned : Yes/No Whether reportable : Yes/No SONIA GUGNANI 2026.07.20 15.25 I attest to the accuracy and integrity of this document Chandigarh