234 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 17.03.2025 Harpreet Chawla ....Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Sumit Kalra, Advocate and Mr. Pulkit Sethi, Advocate for the petitioner.

Mr. Nitesh Sharma, DAG, Punjab.

Mr. Keshav Pratap Singh, Advocate for respondent No.4.

HARPREET SINGH BRAR, J. (ORAL)

Present 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.2 & 3 to produce the alleged detenue-

daughter of the petitioner, namely, Ehsaas.

Learned counsel for the petitioner, inter alia, contends that the petitioner is mother of the alleged detenue, who is aged about 04 -05 years. He further submits that respondent No.4 told the petitioner that his mother is suffering from cancer and undergoing treatments, therefore, he wanted to keep his daughter with his mother and took the minor daughter of the petitioner with him forcefully. He further submits that in view of her minor age, the detenue must be in custody of her natural mother i.e. the petitioner. As such, she is being illegally detained by respondent No.4.

Learned counsel for respondent No.4 submits that since September, 2021, the minor child is staying with respondent No.4 i.e. the father and no date and time has been mentioned in the present petition on respondent No.4 has taken away the child and the allegations of illegal detention made by the petitioner are truly baseless. He further submits that at no point, the child was unlawfully deprived of her mother i.e. the petitioner.

Having heard learned counsel for the parties and after perusing the record, it transpires that the detenue is the daughter of the petitioner, aged about 04-05 years. Currently, she is residing with her father i.e. respondent No.4 and his family.

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 Jagdisg 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 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 c ourt is of the view that a detailed enquiry is required , the court may