The writ of habeas corpus in child custody cases is an extraordinary, discretionary remedy predicated on the child's welfare. While not a substitute for statutory procedures, courts may intervene via parens patriae jurisdiction to restore custody to a natural guardian when current detention lacks legal authority.

NAVIN CHAWLA, J. (ORAL)

1. The present Writ Petition has been filed under Article 226 of the Constitution of India, read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking issuance of a Writ of Habeas Corpus, directing the respondents to produce the body of the two minor daughters of the petitioner, one aged 12 months and the second aged about 4 years and 9 months, respectively.

2. Briefly stated, the petitioner herein was married to the respondent no. 4 according to the Hindu rites and customs in Delhi on 10.03.2019. Pursuant to their marriage, matrimonial dispute arose between the said parties and the petitioner filed a written complaint to the Women’s Commission and the P.S. Chhawla, Delhi, on 30.09.2019, against the respondent nos.4 to 8. The respondent no. 4 is the husband of the petitioner; the respondent nos.5 and 6 are the father-in-law and the mother-in-law of the petitioner respectively; while respondent nos. 7 and 8 are the brothers-in-law of the petitioner. The said dispute was, however, settled and the petitioner states that she did not pursue it any further based on the assurance given by the respondent no. 4.

3. The first child was born on 22.03.2021, whereafter matrimonial dispute again arose between the parties, leading to the petitioner filing an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, against the respondent nos.4 to 8 on 08.11.2021. The dispute was referred to the Delhi Mediation Centre, Tis Hazari Courts, New Delhi, where the same was settled again between the parties vide the Settlement dated 19.05.2022 and both the parties decided to live together as husband and wife along with their minor daughter at the matrimonial home.

4. The second child was born to the parties, that is, the petitioner and the respondent no.4, on 18.09.2023. However, unfortunately, the child passed away on 20.05.2024.

5. The parties, thereafter, were blessed with their third child on 10.12.2024, in respect of whose custody also the present petition has been filed.

6. The petitioner herein claims that on 21.07.2025, the respondent nos.4 to 6 asked the petitioner to visit her paternal home for a few days, while insisting that the minor daughters be left back at the matrimonial home with respondent nos. 4 to 6. Upon her return, however, she was not allowed to enter her matrimonial home and the children remained in the custody of the respondent nos.5 to 8, that are, the parents-in-law and the brothers-in-law of the petitioner.

7. Thereafter, the petitioner filed a complaint, bearing DD no. 373 dated 06.08.2025, before the CAW Cell at P.S. Subzi Mandi against the respondents nos. 4 to 8 and an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate First Class, Central District, Tis Hazari Courts, Delhi, on 29.08.2025. It is alleged that while the petitioner had consented for settlement through mediation and was appearing for the same, however, the respondents nos. 4 to 8 have not been appearing for the same.

8. The petitioner had also moved an application under Section 21 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate First Class, Central District, Tis Hazari Courts, Delhi, on 15.09.2025, seeking custody of her minor daughters. The said application is pending adjudication and is listed for service of summons on the remaining parties.

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