234 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 15.05.2025 NISHA ...PETITIONER V/S STATE OF HARYANA AND OTHERS ...RESPONDENTS CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Vikas Kumar, Advocate for the petitioner.

Mr. Ramesh Kumar Ambavta, AAG Haryana.

****

HARPREET SINGH BRAR , J. (ORAL)

1. This criminal writ petition has been filed under Articles 226/227 of the Constitution of India seeking issuance of a writ in the nature of Habeas Corpus directing respondents No. 5 and 6 to produce the detenue Ishani (aged

09 years) who is the daughter of petitioner.

2. Learned counsel for the petitioner inter alia contends that petitioner was in a live-in relationship with respondent No. 7 and out of the said relationship, two baby girls were born. One of them namely Ishani, is the detenu in question. Subsequently, respondent No. 7 informed the petitioner that he wants to settle down with his legally wedded wife. After separation, the petitioner and respondent No. 7 mutually agreed to take care of one daughter each and to equally distribute the responsibility of parenthood. On 05.08.2022, private respondents in connivance with each other, prepared a forged adoption deed reflecting that the detenu has been adopted by respondents No. 5 and 6, the brother-in-law and sister of respondent No.7. A birth certificate of the detenu was also prepared on the basis of the forged and fabricated adoption deed. The petitioner has challenged the said adoption deed by filing a civil suit No. CS-583-2023 before learned Civil Court, Bhiwani and has also instituted one criminal complaint, which is pending before learned Judicial Magistrate Ist Class, Bhiwani.

3. Learned State counsel on the other hand submits that present petition has been instituted in a mischievous manner and as the petitioner has already instituted a civil suit and filed criminal complaint in this regard, both of which are pending adjudication. Further the statement of detenu was recorded and she has refused to join the company of the petitioner. The allegations levelled by the petitioner were found to be false as the detenu was duly produced before the Child Welfare Committee where, during counselling, the detenu showed her inclination to reside with respondent No. 6. Accordingly, the custody of the detenu was handed over to respondents No.5 and 6, who are her real uncle and aunt.

4. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the detenu is currently 10 years old. After due counselling by the Child Welfare Committee, it was concluded that the detenu wants to reside with respondents No.5 and 6, who are the brother-in-law and sister, respectively, of her father.

5. This Court has noticed an increasing tendency amongst disgruntled parents to move a writ petition in the nature of habeas corpus, in order to settle custody of their 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 c ourt . 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