229 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 25.02.2025 Rajinder Kaur alias Simranjit Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Vikas Gupta, Advocate for the petitioner.

Mr. Nitesh Sharma, DAG Punjab.

Ms. Annie, Advocate for respondent No. 4.

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Harpreet Singh Brar, J. (Oral)

1. The present criminal writ petition has been filed under Article 226 of the Constitution of India seeking issuance of a writ in the nature of Habeas Corpus, for release of detenue- Arman Singh, 4.5 years old son of the petitioner, who is in illegal custody of respondent No.4.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner was married to respondent No.4 on 22.09.2016 and the detenue- Arman Singh was born to them on 17.09.2019. The petitioner was shunned out of the matrimonial home on 29.11.2021 along with her minor daughter, and the detenue was deceitfully snatched from her. Since the detenue is of tender age of 4.5 years, the petitioner is his natural guardian and as such, respondent No.4 is wrongfully keeping him in his custody. Reliance in this regard is placed on the judgments rendered by the Hon’ble Supreme Court in Yashita Sahu vs. State of Rajasthan and others (2020) 3 SCC 67 and Roxann Sharma vs.

Arun Sharma 2015(2) R.C.R.(Civil) 93.

3. Per contra, learned counsel for respondent No. 4 submits that he is the biological father of detenue and as such, he can also be the natural guardian of minor child.

4. Having heard learned counsel for the parties and after perusing the record, it transpires that the matter was referred to mediation vide order dated 04.11.2024, however as per mediation report dated 03.12.2024, no settlement could be arrived at.

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 t he 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 i ssued. In child custody matters, the power of the High C ourt 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 court which is of summary in nature. What is important is the welfare of the child. In the writ court , rights are determined only on the basis of affidavits. Where the court is of the v iew that a detailed enquiry is required, the c ourt may decline to exercise the extraordinary jurisdiction and direct the parties to a pproach the civil court . It is only in exceptional ca