A writ of habeas corpus for child custody is an extraordinary, summary remedy that should not be exercised when a formal guardianship proceeding is pending, especially where the welfare of the child and the fitness of a natural guardian facing criminal charges require a detailed, trial-based inquiry.

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YASHVIR SINGH RATHOR, J.

1. The present writ petition has been filed under Section 226 of the Constitution of India for the issuance of Writ in the nature of habeas corpus and for appointment of a Warrant Officer with a roving Writ to search for the detenues namely Divleen Kaur daughter of Jaspreet Singh aged about 5 years and Samrathjot Singh son of Jaspreet Singh aged about 3½ years at the premises of respondent No.4 or at any other place, and get the detenues released from the illegal custody of respondent No.4.

2. Case of the petitioner is that his marriage was solemnized with one Rajbir Kaur and two children namely Divleen Kaur and Samrathjot Singh were born out of said wedlock. However, the relations between him and his wife were not cordial and on 11.09.2024, petitioner as well as Rajbir Kaur consumed some poisonous substance due to which both of them were hospitalized in DMC Hospital, Ludhiana. However, during treatment, Rajbir Kaur died on 13.09.2024. Thereafter, FIR No.152 dated 14.09.2024 was registered under Section 108 , 3(5) of BNS, 2023, Police Station Basti Bawa Khel, Jalandhar against the petitioner as well as his sister Harkirtan Kaur for abetment of suicide by Rajbir Kaur and the petitioner was arrested. In the meanwhile, respondent No.4-who is sister of Rajbir Kaur, took over the custody of his children. Petitioner was released on bail vide order 11.12.2024 passed by the learned Additional Sessions Judge, Jalandhar. Thereafter, he approached respondent No.4 to hand over the custody of his children to him but respondent No.4 refused to hand over the custody of the children. It is further submitted that the act of respondent No.4 is illegal and in gross violation of the fundamental rights of the petitioner and the children and respondent No.4 is not the lawful guardian of the children under any law. The custody of both detenues has been forcibly taken away from the biological father, which is illegal. It is further submitted that petitioner is the natural guardian of the minor children under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 1956 Act) and respondent No.4 has no legal authority or right over the minor children and she has wrongfully confined his minor children with herself. Petitioner is doing a Government job and is fit to take care of the children. It is further submitted that respondent No.4-sister-in-law of petitioner has filed one case No.GW-12-2025 under the Guardians and Wards Act, 1890 before District Court Kapurthala for appointing her as legal guardian of the minor children and for restraining the petitioner from obtaining the custody of the minor children.

3. By way of present petition, it has been prayed that present petition be allowed and respondent No.4 be directed to immediately release the detenues/minor children from her illegal and unlawful detention and their custody be handed over to him.

4. Reply has been filed on behalf of the State. As per the reply, both the minor children are being taken care of by respondent No.4-Harmandeep Kaur. The respondent No.4 has filed one case No.GW-12-2025 under the Guardians and Wards Act, 1890 before Family Court Kapurthala. Since the aforesaid case is already subjudice before Family Court, Kapurthala, the petitioner i