The court upheld the mother's right to custody as the child's natural guardian, emphasizing that custody disputes should prioritize the child's welfare.

RUPINDERJIT CHAHAL, J. (ORAL)

1. Present petition has been filed under Article 226/227 of the Constitution of India read with Section 528 BNSS, 2023 for issuance of a writ in the nature of Habeas Corpus for releasing the detenue namely Ekamveer Singh aged 04 years son of the petitioner from the illegal custody of respondent Nos.4 to 6.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner is father of the alleged detenue. He submits that the petitioner married with respondent No.4 in July, 2018 and out of the wedlock, one child (detenue) was born. There has been a matrimonial dispute between the petitioner and respondent No.4 who has left the matrimonial home along with the alleged detenue on 03.07.2025. Since then, respondent Nos.4 to 6 have not allowed the petitioner to meet the detenue and have confined him in their illegal custody.

3. Learned counsel for respondent No.4 contends that the detenue is in custody of his mother and by no stretch of imagination it can be termed as illegal since the mother is the natural guardian of the detenue. He further prays that any direction in this writ petition is not warranted in the facts of the present case.

4. Vide order dated 28.08.2025 passed by this Court, the parties were directed to appear before this Court along with the alleged detenue.

5. In compliance thereto, the alleged detenue along with respondent Nos.4 to 6 is present in Court.

6. Since the relationship between the parties became sour, due to this reason they are living separately. As per allegations of the petitioner, respondent No.4 has forcibly taken the custody of the minor child. The question that arises before this Court is whether custody of minor child with his mother can be stated to be illegal, requiring writ in the nature of habeas corpus?

7. 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 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 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 significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ c