Punjab-Haryana High Court
Surabhi Bhasin vs State Of Punjab And Ors on 2 April, 2025
Neutral Citation No:=2025:PHHC:044446
CRWP-8234
8234-2024 (O&M) -1-
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
264
CRWP-8234-20242024 (O&M)
Date of decision: 02.04.2025
Surabhi Bhasin ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Vivek K. Thakur, Advocate
for the petitioner.
Ms. Swati Batra, Deputy Advocate General, Punjab.
Mr. Deepak Sabherwal, Advocate
for respondents No. 4 and 5.
MANISHA BATRA, J. (Oral)
1. The present petition has been filed by the petitioner under Article 226 of the Constitution of India India seeking issuance of writ in the nature of habeas corpus for obtaining the custody of her minor son namely Shivansh Bhasin,, who is alleged to be in illegal custody of respondent No. No.4-Ashish Ashish Bhasin.
2. Brief facts of the case as set up by the petitioner are that the marriage of the petitioner was solemnized with respondent No. 4-Ashish Ashish Bhasin on 21.04.2019 as per Hindu rites and rituals rituals. Out of the said wedlock, lock, one male child (alleged detenue), detenue), namely Shivansh Bhasin, was born on 07.04.2020. However, the matrimonial relation of the petitioner with 07.04.2020.
respondent No. 4 witnessed rough weather as she was harassed and maltreated by him. Ultimately, she was thrown thro out of the matrimonial house. She requested to respondents No. 4 and 5 to give her the custody of the child but 1 of 8 ::: Downloaded on - 08-04-2025 00:54:13 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -2-
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they did not do so. The petitioner tried to prevail good sense upon respondents respondent No. 4 and 5 but they did not mend their ways. The child was studying ying in LKG Class in Christ King Convent School at Kapurthala but respondent No. 4 is not sending him school now. He is a wanted criminal and is absconding as he has recently been arraigned as an accused in a case bearing GD No. 041 dated 14.12.2024 registered ered under Section 118(1) and 118(2) of BNS, 2023 at Police Station City Kapurthala.
3. Learned counsel for the petitioner has submitted that respondent No. 4 has forcibly taken the custody of the minor child from the petitioner and the act of respondent No. 4 is not only illegal but also amounts to cruelty to thee petitioner as well as child as he was of tender age and needed the care and company of his mother for his upbringing. The petitioner had filed a divorce petition against against respondent No. 4 before the competent Court, which is pending. While submitting that respondent No. 4 is mistreating treating the minor child and not maintaining him properly, properly it is urged that a writ of habeas corpus be issued for release of the alleged detenue detenue. To fortify his argument, learned counsel for the petitioner has relied upon the judgments of this Court rendered in Kamaldeep Kaur vs. State of Haryana and others : 2024 SCC Online P&H 8923, Rashneet Kaur vs. State of Haryana and others : 2022 SCC Online P&H &H 4267, 4267 CRWP-9996-2020,, titled as Ramita Rani vs. State of Punjab and others, others, decided on 02.03.2021, CRWP-8319-2020,, titled as Mandeep Kaur vs. State of Punjab and others others,, decided on 10.05.2021 and CRWP-3013 3013-2020, titled as Neha vs. State of Haryana and oothers,, decided on 01.06.2020.
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4. Short reply has been filed by the respondent respondent-State.
State. It is submitted therein and learned State counsel has submitted that an application was moved by the petitioner on 03.07.2024 before the SHO concerned and on inquiry, it was found that a matrimonial dispute has arisen between the petitioner and her in-laws.
laws. It is further submitted that at the instance of resp respondent ondent No. 4, an FIR bearing No. 182 dated 05.07.2024 has been registered against the petitioner and her family members on the allegations that on 03.07.2024, they had gone to the house of respondent No. 4 and had inflicted injuries on his person. However, the petitioner and other co-accused accused have been granted concession of anticipatory bail by the Court of learned Additional Sessions Judge, Kapurthala.
5. Reply, on behalf of respondent respondents No. 4 and 5,, has also been filed, wherein while denying the allegations allegations as levelled by the petitioner, it is submitted that since respondent No. 4 is natural father of the child,, he cannot be stated to be in illegal custody of the child and the present petition is not maintainable Itt is submitted that respondent No. 4 has never mistreated the maintainable.
child and rather, rather, he is properly taking care of him, being his father and is also discharging his responsibilities properly. It is also submitted that even he had never caused any harassment to the petitioner and she had left the compa company ny of respondent out of her own free will as she used to quarrel with him on petty issues. The aforesaid GD has been registered as a cross case in the FIR got registered by respondent No. 4 against the petitioner and her family members. It is, thus, argued that the petition is liable to be dismissed. Learned counsel for respondent No. 4 has relied upon the authority of Hon'ble Supreme Court cited as Roxann Sharma vs. Arun Sharma : 2015 (2) RCR (Civil) 93 to 3 of 8 ::: Downloaded on - 08-04-2025 00:54:14 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -4-
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contend that the use of word 'ordinarily' in Section 6 of the Act, 1956 cannot be over-emphasized emphasized as it ordains a presumption, albeit a rebuttable one in favour of the mother. He has also relied upon a judgment rendered by the High Court of Allahabad in Amit it vs. Nirmal Sahu : 2009 (5) RCR (Civil) 258,, wherein it was held that in Section 6 of the Act, 1956, the word 'ordinarily' does not mean 'necessarily'. He has also relied upon the judgments rendered by this Court in Poonam Kalsi vs. State of Punjab and others thers : 2022 (3) RCR (Civil) 262 and Manisha Gupta vs. State of Punjab and others : 2023 (3) RCR (Civil) 46, 46, wherein it has been held that the custody of the minor child with the father as a natural guardian cannot be said to be illegal or unlawful.
6. I have heard learned counsel for the parties at considerable length and have also gone through the record carefully.
7. The petitioner was married to respondent No. 4 on 21.04.2019 and out of the wedlock, one male child (alleged detenue) was born on 07.04.2020 Since the relationship between the parties became sour, due to the 07.04.2020.
reasons best known to them, they started living separately. As per allegations of the petitioner, respondent No. 4 has forcibly taken the custody of the minor child and is not properly maintaining him. The question that arises before this Court for consideration is as to whether the custody of the minor child with respondent No. 4 can be stated to be illegal, warranting issuance of a writ in the nature of habeas corpus directing his release from his custody.
8. At the outset, it may be mentioned that the parties have already been litigating for the custody of the minor child and a petition under the provisions of the Hindu Minority and Guardianship Act, 1956 (for short 'Act, 4 of 8 ::: Downloaded on - 08-04-2025 00:54:14 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -5-
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1956) is already pending before the jurisdictional Court. As per Section 6 of the Act, 1956, 1956 the custody of a child under the age of 05 years shall ordinarily be with the mother. For ready reference, Section 6 of the Act, 1890 is reproduced below:
"6. Natural guardians of a Hindu minor.
minor.--
The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl girl--the the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
9. On a bare reading of the above mentioned provision, it is clear that the father of a minor is his natural guardian and it is only on his demise that the mother becomes the natural guardian.
10. The petitioner has invoked jurisdiction of this Court for is issuance suance of a writ in the nature of habeas corpus. Such writ is primarily issued calling upon a person who had detained another to produce the detained individual in order to let the Court to know on what ground a detenue has been confined and set him at liberty liberty if there is no legal justification for such detention. When once the Court comes to the conclusion that the detention is unlawful, the confinement cannot be permitted and consequently direction has to be issued to set the detenue at liberty. Reliance in this context can be placed upon a Full Bench judgment of the High Court of Madras reported as Kuppammal and others vs. The Dist. Collector and Dist. Magistrate, Thiruvallur District, Thiruvallur and Others, Others decided on 13.02.2001 in HCP Nos.11,41,66, 76 5 of 8 ::: Downloaded on - 08-04-2025 00:54:14 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -6-
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and 103 of 2000, 2 wherein it was observed that the confinement of a person is either unlawful or considered to be unlawful in cases where the detention is not authorised or under the shelter of any law or the detention law under which the detention ordered is void, whe where re the authority who had ordered detention is not the one specified or authorised in that behalf, where though the specified authority ordering detention is competent and also acts under a valid law yet if such authority had failed to follow the procedure prescribed in that behalf and in some cases even when the authority had followed the procedure prescribed if action of said authority is vitiated by one or more of the defects or infirmity recognised in this respect by principles of administrative law such as abuse of power power, mala fides, perversity, non-
non application of mind, mind arbitrariness or extraneous consideration or a fortiori reason or like.
11. Reference can further be made to Tejaswini Gaud vs. s. Shekhar Jagdish Prasad Tiwari : (2019) 7 SCC 42 42, wherein it was observed by Hon'ble Supreme Court that habeas abeas corpus proceeding is not to justify or examine the legality of the custody.
custody Habeas abeas corpus proceeding is a medium through which the custody of the child is addressed to the discretion of the court. Habeas 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 is 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 6 of 8 ::: Downloaded on - 08-04-2025 00:54:14 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -7-
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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. With regard to child custody tody matters, the following observations were further made by the Hon'ble Apex Court :
"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 view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."
12. In the present case, the age of the child, whose custody is sought by the petitioner/mother, is below 05 years as he would be completing 05 years of age on 07.04.2025. So far as the custody of the child below the age of 05 years is concerned, the mother per se is considered to be the best suited to take care of such child during his tender age. However, at the same time, the custody of a minor child with either either of the natural guardians cannot said to be 7 of 8 ::: Downloaded on - 08-04-2025 00:54:14 ::: Neutral Citation No:=2025:PHHC:044446 CRWP-8234 8234-2024 (O&M) -8-
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illegal. The child of the petitioner and respondent No. 4 is going to attain the age of 05 years as on 07.04.2025. With regard to rival claims of the parties that only one of them can look after the best inter interest of the minor, can be ascertained before the jurisdictional Court dealing with the petition for custody of the child as such Court would be seized of the entire material to be produced by the parties in support of the competing claims and would obviously be more equipped to determine the welfare of the child by giving complete opportunity to the contesting parties. In view of the discussion as made above, finding no merit in the petition, the same is dismissed.
02.04.2025 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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