“‘A Mother’s Love is God’s Own Cradle’: Punjab & Haryana HC Rejects Habeas Plea by Paternal Uncle, Says Custody Battle Not a Case of Kidnapping”
Isabella Mariam
The High Court of Punjab and Haryana Single Bench of Justice Harpreet Singh Brar held that in the absence of any judicial order divesting a parent of guardianship, custody of a minor child by either parent cannot be considered illegal. The Court dismissed a habeas corpus petition seeking the release of a 12-year-old child from the custody of his mother, observing that both parents are natural guardians. The Court found no grounds for interference at the current stage as the guardianship petition was already pending before the competent family court.
The petitioner, uncle of the alleged detenu, approached the High Court under Articles 226 and 227 of the Constitution of India, seeking a writ of habeas corpus directing the official respondents to secure the release of the minor child, aged 12, from the custody of respondent No. 4, the child’s mother.
According to the petitioner, the child was in the care of his father, the petitioner’s brother, who had travelled to Belgium for a business conference on 24 April 2025. During this time, the mother allegedly entered the father’s office, removed the child’s passport, and took the child from his usual residence during early morning hours.
The petitioner claimed that the police were notified but were unresponsive. It was further alleged that respondent No. 4 misrepresented the situation to the police, stating that she had taken the child briefly to meet her parents in Delhi, though her mother did not reside there. The petitioner asserted that respondent No. 4 intended to take the child to Australia, where she resides.
In response, counsel for respondent No. 4 submitted that the child had contacted his mother voluntarily, expressing distress over being left alone with house help while his father was abroad. She returned from Australia to be with her son and presented screenshots of calls and messages from the child, who allegedly requested her to book tickets. Respondent No. 4 contended that she remains a legal guardian of the child and that no court order has restrained her from exercising custody.
It was also brought to the Court’s attention that a guardianship petition regarding the custody of the child was pending before the Family Court in Gurugram.
Notice of motion was issued. The Additional Advocate General, Haryana, accepted notice on behalf of the State authorities.
The Court examined the statutory framework under Section 361 of the Indian Penal Code and Section 6 of the Hindu Minority and Guardianship Act, 1956 (HMGA). It recorded, “For an incident to be considered as kidnapping, it is necessary that the minor child is taken away from the custody of a ‘lawful guardian.’ However, a mother falls well within its ambit, especially in absence of an order passed by a competent Court, divesting her of the same.”
The Court further observed, “A parent cannot be implicated for kidnapping their own child as both the parents are his equal natural guardians.”
Addressing the increasing trend of filing habeas corpus petitions in child custody disputes, the Court cited the Supreme Court decision in Tejaswini Gaud and others vs. Shekhar Jagdisg Prasad Tewari, AIR 2019 SC 2318, and recorded, “Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court… 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.”
The Court noted that, “In child custody matters, the ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be.” It stated that custody issues should usually be decided by the family court through detailed enquiry, unless exceptional circumstances justify exercise of writ jurisdiction.
Referring to Rajeshwari Chandrasekar Ganesh vs. State of Tamil Nadu and others, 2022 SCC OnLine SC 885, the Court quoted, “The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced.”
It stated “The general principle governing the award of custody of a minor is… the court must regard the minor’s welfare as the first and paramount consideration.”
The Court took note of the factual matrix, stating, “Respondent No.4, mother of the detenu, ordinarily resides in Australia. The detenu was left with the house help by his father , while he was on a business trip to Belgium. Perturbed by the same, the detenu called his mother-respondent No.4, in distress and she flew all the way from Australia to be with him.”
The Court further recorded, “Even though the matrimonial relationship between the parents has soured, the relationship between a parent and child subsists and it is only natural for a mother to give in to her maternal instincts and respond to the calls of her distressed child.”
Given the pending guardianship petition, the Court stated, “It would be just and prudent for this Court to take into account the wishes and well-being of the detenu, who is 12 years old, and capable of forming a rational opinion about his living situation.”
The Court declined to interfere at the present stage of the matter and concluded that no specific directions were warranted. It recorded that any interference at this juncture would be unwarranted and accordingly dismissed the petition.
It further directed, “Pending miscellaneous application(s), if any, shall also stand disposed of.”
Advocates Representing the Parties
For the Petitioners: Ms. Arundhati Katju, Senior Advocate, with Mr. Anand V. Khanna, Advocate, and Mr. Harmanbir S. Sandha, Advocate
For the Respondents: Mr. Ramesh Kumar Ambavta, Additional Advocate General, Haryana; Mr. Manjinder Singh Saini, Advocate
Case Title: XXX v. State of Haryana and Others
Neutral Citation: 2025:PHHC:055280
Case Number: CRWP No. 4205 of 2025
Bench: Justice Harpreet Singh Brar
[Read/Download order]
