The welfare of the child is the paramount consideration in custody disputes, and habeas corpus may be used to address illegal detention of minors.

HARPREET SINGH BRAR, J. (ORAL)

1. Present petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus for appointment of a Warrant Officer to search the premises of respondents No.5 to 7 and to hand over custody of the detenue, namely Krishiv, aged about 1½ years, minor son of the petitioner, who is illegally detained by them.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner is mother of the alleged detenue. Her marriage was solemnized with respondent No.5 on 05.09.2022 according to Hindu rites and rituals. Soon thereafter, the petitioner was tortured and maltreated by her husband i.e.

respondent No.5 and other family members for bringing less dowry and she was turned out of her matrimonial home. However, with the intervention of the Panchayat and respectables of the society, the petitioner was rehabilitated in her matrimonial home. Out of the said wedlock, on 28.12.2023, the detenue was born and parents of the petitioner gave sufficient cash and gift items to her in-laws. Further, on 10.07.2025, respondents No.5 to 7, after giving severe beatings to the petitioner, turned her out of the matrimonial home and the detenue/minor son of the petitioner was snatched by them. In this regard, the petitioner made a complaint on 10.07.2025 (Annexure P-1) to respondent No.4 against respondents No.5 to 7. Learned counsel for the petitioner submits that keeping in view the tender age of the detenue, who is illegally kept confined by respondents No.5 to 7, he must be in custody of the petitioner being mother.

3. Notice of motion.

4. Mr. Nitesh Sharma, DAG, Punjab, who is present in the Court today, accepts notice on behalf of official respondents No.1 to 4-State.

5. Having heard learned counsel for the parties and after perusing the record of the case, it transpires that the detenue is minor son of the petitioner and presently, he is in custody of his father and grandparents i.e.

respondents No.5 to 7.

6. 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 Supreme Court in Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari , 2019 AIR SC 2318, speaking through Justice R. Banumathi, has opined 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 d iscretion 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 p ower 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 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 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 sign