Isabella Mariam

The High Court of Punjab and Haryana Single Bench of Justice Sumeet Goel dismissed a writ petition concerning the custody of a minor child, directing the parties to pursue remedies before the competent statutory forum. The Court held that the extraordinary jurisdiction under Article 226 of the Constitution of India could not be invoked in the presence of an effective alternative remedy available under guardianship statutes. The decision reserved liberty for the contesting parties to approach the appropriate court to determine the issue of custody and welfare of the child. The Court further clarified that any observations made in the writ proceedings would not affect the merits of pending or future proceedings concerning the child’s custody.

The proceedings arose from a dispute concerning the custody of a male minor child born on 26.08.2021. The petitioner, being the mother of the child, filed the writ petition under Articles 226 and 227 of the Constitution of India, seeking issuance of a writ of habeas corpus against the respondent, the father of the child. The relief sought was the transfer of custody of the child to the petitioner.

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The petitioner and the respondent had solemnized their marriage in accordance with Sikh rites and rituals. Subsequent disputes arose between them, leading to matrimonial litigation. The respondent-father had earlier instituted a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage. In the course of those proceedings, the petitioner had sought visitation rights. However, the divorce petition was later withdrawn on 21.05.2024.

Parallel to this, the petitioner-mother had instituted proceedings under the Protection of Women from Domestic Violence Act, 2005, wherein she filed an application seeking permission to meet the child. This application was declined on 11.02.2025 by the competent Magistrate. The petitioner thereafter filed another proceeding in January 2025 under Section 25 of the Guardians and Wards Act, 1890, seeking custody of the child from the respondent-father. That petition remained pending at the time of filing the present writ petition.

In the writ proceedings, the petitioner asserted that the minor child, being of tender age of about four years, should remain in her custody, in accordance with the welfare principle governing custody matters. Allegations were made against the respondent-father of ill-treatment, illicit relationships, and consumption of intoxicants, which were argued to render the atmosphere in his household unconducive for the upbringing of the minor.

The State, represented through an affidavit dated 24.06.2025 by the Deputy Superintendent of Police, filed a status report but stated that it was not a contesting party in the matter, considering that the dispute was essentially one between the mother and father over the custody of the child.

The respondent-father opposed the petition, asserting that the writ petition was not maintainable given that the petitioner had already availed statutory remedies under the Guardians and Wards Act, 1890, which were pending adjudication. Reliance was also placed on the earlier order of 11.02.2025, whereby the Magistrate had declined the petitioner’s application for visitation under the Domestic Violence Act proceedings. It was contended that the custody of the minor with the father, being a natural guardian, could not be termed illegal or unlawful so as to warrant a writ of habeas corpus.

The rival submissions, therefore, turned on the maintainability of the habeas corpus petition, the welfare of the minor child, and the existence of an alternative statutory remedy.

The Court recorded that the central issue was the scope of writ jurisdiction in matters of custody when statutory remedies under guardianship laws were already available. It noted: “The seminal legal issue which arises for consideration is the realm of exercise of jurisdiction of the High Court in Habeas Corpus writ petition when there is statutory alternative remedy available in the form of a petition under the Hindu Minority and Guardianship Act, 1956/ the Guardians and Wards Act, 1890.”

Relying on Article 226 of the Constitution, the Court reiterated its plenary power to issue writs but also stressed judicial restraint in the presence of efficacious statutory remedies. The Court quoted: “The writ of Habeas Corpus, a venerable cornerstone of the common law, stands as one of the most ancient legal instruments devised to safeguard individual liberty against unwarranted encroachment.” However, it clarified that in custody disputes between parents, the jurisdictional fact justifying such a writ would be whether the custody was demonstrably illegal or unlawful.

The Court referred extensively to precedents of the Hon’ble Supreme Court, including Veena Kapoor v. Varinder Kumar Kapoor (1982 AIR 792), Saleemuddin v. Dr. Rukhsana (2001(2) RCR (Criminal) 591), Nithya Anand Raghavan v. State of NCT of Delhi (2017(3) RCR (Civil) 798), Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019(3) RCR (Civil) 104), and Chandrasekar Ganesh v. State of Tamil Nadu (2023 (12) SCC 472).

Quoting from precedent, the Court noted: “In an application seeking a writ of Habeas Corpus for custody of children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed.”

It further recorded: “The detention of a minor-child by a person, not legally entitled to custody, is deemed equivalent to an illegal detention for the purpose of granting writ of Habeas Corpus as has been held by Hon’ble Supreme Court in case of Tejaswini Gaud (supra). Consequently, the unlawful or illegal nature of the minor-child’s custody constitutes a jurisdictional pre-requisite for the exercise of Habeas Corpus writ jurisdiction.”

The Court stressed that custody disputes fall more appropriately within the adjudicatory framework of guardianship statutes, observing: “In custody disputes pertaining to a minor, the conventional recourse is through the provisions of relevant guardianship statutes including the Hindu Minority and Guardianship Act, 1956; the Guardians and Wards Act, 1890 etc. These legislative frameworks provide 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.”

The Court rejected the petitioner’s concealment of earlier proceedings under the Domestic Violence Act, stating: “This unscrupulous attempt, by the petitioner, deserves to be deprecated. This Court refrains from imposing costs upon the petitioner keeping in view, inter alia, the factum of the petitioner being a lady aged 26 years with no antecedents regarding concealment & the matter in hand arising out of issue of custody of a minor child.”

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On the guiding principles, the Court observed: “It is a pellucid principle of law, in all matters pertaining to the custody of a minor-child, notwithstanding the nature of proceedings, the paramount consideration for the Court is the welfare of such child.” The Bench reiterated that the High Court may, in exceptional circumstances, exercise its jurisdiction under Article 226, but as a matter of judicial discipline, disputes should ordinarily be relegated to statutory forums.

The Court dismissed the writ petition. It issued the following directions: “The writ petition is dismissed, reserving liberty in favour of the rival party(s) to pursue their cause before the concerned Court(s) in the petition pending adjudication under the Guardians and Wards Act and/or in any other proceedings instituted by them.” It further directed: “Any observations made and/or submissions noted hereinabove shall not have any effect on the merits of the litigation(s) pending between the rival parties (herein) regarding the custody of the child in question, which, but of course, shall be decided on its own merits without being influenced with this order.”

The Court additionally ordered that any pending applications in the writ proceedings would also stand disposed of.

Advocates Representing the Parties

For the Petitioner: Mr. Chetan Goyal, Advocate

For the Respondents: Mr. Gurpartap Singh Bhullar, AAG Punjab; Mr. Siddharth Gupta, Advocate

Case Title: Veerpal Kaur versus State of Punjab and others

Neutral Citation: 2025: PHHC:113490

Case Number: CRWP-6232-2025

Bench: Justice Sumeet Goel