IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRWP-9139-2025 Date of decision: 26.08.2025 HAJRU DIN ANSARI ….Petitioner Versus STATE OF PUNJAB AND ORS. ....Respondents CORAM:- HON'BLE MS. JUSTICE RUPINDERJIT CHAHAL Present:- Mr. Suresh Singla, Advocate for the petitioner.

Mr. Ravinder Singh, DAG Punjab.

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RUPINDERJIT CHAHAL, J. (ORAL)

1. Present petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus to produce the minor daughters of the petitioner from the custody of respondent No.4 who is the mother of the detenues.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner is father of the alleged detenues. Out of the wedlock, two children (detenues) were born. There has been a matrimonial dispute between the petitioner and respondent No.4 who has left the company of petitioner on 04.10.2024. Consequently, an FIR was lodged alleging cruelty and demand of dowry and later a civil suit was filed by respondent No.4 seeking restitution of conjugal rights. He further contends that since respondent No.4 had left the company of the petitioner, the detenues/minor daughters were living with the petitioner. Thereafter, a civil suit was filed by respondent No.4 under Guardian & Wards Act seeking custody of minor daughters. He further contends that thereafter another false FIR was registered against the petitioner at the behest of respondent No.4. It is on 06.08.2025 when the petitioner along with the detenues/minor daughters had gone to Ludhiana to meet his relatives, respondent No.4 accompanied with two police men forcefully took both the detenues/minor daughters.

3. Mr. Gopal Singh Nahel, Advocate has put in appearance on behalf of respondent No.4 and has filed his vakalatnama. The same is taken on record. He contends that the lis regarding the custody of the minor daughters is already pending before the learned Trial Court and as such any direction in this writ petition is not warranted in the facts of the present case.

4. Vide order dated 22.08.2025 passed by this Court, a notice was issued to respondent No.4 and respondent No.3-SHO was directed to appear with alleged detenues as well as respondent No.4 in Court.

5. In compliance thereto, the concerned SHO has produced the alleged detenues along with respondent No.4. It is not disputed by either of the parties that the elder daughter(detenue) is a special child requiring constant medical attention and care.

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 children/detenues. The question that arises before this Court is whether custody of minor children/detenue with their 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 th