Punjab-Haryana High Court
Harjaspreet Kaur vs State Of Punjab And Others on 14 October, 2025
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
CRWP-4774-2025 -1-
124+291 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP-4774-2025 (O&M)
Decided on: 14.10.2025
Harjaspreet Kaur ..... Petitioner
Versus
State of Punjab and others ......Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Ranjit Singh Sidhu, Advocate, for the petitioner.
Mr. Raj Karan Singh, AAG, Punjab.
Mr. Nikhil Chopra, Advocate, for respondent No.5.
Rajesh Bhardwaj, J.
CRM-W-1488-2025 Allowed as prayed for.
CRM-W-1176-2025 Prayer in the present application filed under Section 528 BNSS, 2023 is for revival of the main petition i.e. CRWP-4774-2025 which was disposed of vide order dted 27.05.2025.
Notice in the application.
Mr.Raj Karan Singh, AAG, Punjab, accepts notice on behalf of the State and Mr. Nikhil Chopra, Advocate, accepts notice on behalf of respondent No.5. They have pleaded no objection, if the present application is allowed.
For the reasons mentioned in the application, the same is allowed. The main petition is restored to original number and position and the same is taken up on board for hearing today itself. Main case
1. Prayer in the present petition filed under Articles 226/227 of 1 of 9 ::: Downloaded on - 09-11-2025 18:38:07 ::: CRWP-4774-2025 -2- the Constitution of India is for issuance of a writ, order or direction, especially in the nature of Habeas Corpus by appointing a warrant officer with a direction to search the minor detenue, namely, Gurshabad Singh Sidhu aged about 2½ years, son of the petitioner, who has been taken into illegal custody by respondents No.4 and 5 alongwith others and after recovering the detenue to produce him before this Court.
2. Succinctly facts of the present case are that the petitioner is the mother of minor child i.e. detenue Gurshabad Singh Sidhu, who is presently in the custody of respondents No.4 and 5 i.e. the grand parents of the child. The petitioner is citizen of Australia, who got married to Gurpreet Singh i.e. son of respondents No.4 and 5 on 28.05.2021. This was the second marriage of the petitioner as well as that of Gurpreet Singh Singh. Thereafter, a male child i.e. the detenue was born out of this wedlock on 11.11.2022 in Australia. However, with the consent of both the parents, the child was brought to India by the grand parents i.e. respondents No.4 and 5. The petitioner, thereafter, sought the custody of the child, however, the same was declined by respondents No.4 and 5. Respondents No.4 and 5 also filed a Civil Suit seeking permanent injunction wherein application under Order 30 Rule 1 and 2 CPC was filed and learned Civil Court granted status quo regarding the custody of the child vide its order dated 28.04.2025. Hence, the petitioner has approached this Court by way of filing the present petition. The case came up for hearing before this Court on 25.07.2025 when counsel for respondents No.4 and 5 made a statement before this Court that they would take the child back to Australia before 30.06.2025 and hence, the petition was disposed of by this Court vide order dated 2 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -3- 25.07.2025. However, the child was not taken back to Australia, thus, CRM-W-1176-2025 under Section 528 BNSS, 2023 was filed by the petitioner for revival of main case i.e. CRWP-4774-2025. During the pendency of the present petition, respondent No.4 i.e. the grand father of the detenue child expired. Respondent No.5 i.e. the grand mother of the child filed the response of the application filed by the petitioner for revival of the petitioner.
3. Learned counsel for the petitioner has vehemently contended that the petitioner before this Court is the natural guardian of the detenue being mother of the child. He submits that the petitioner and Gurpreet Singh entered into a marriage on 28.05.2021, which was second marriage of both of them. He submits that behaviour of Gurpreet Singh was cruel towards the petitioner and hence, a complaint had also been filed by the petitioner against Gurpreet Singh for committing domestic violence upon her. He submits that with the consent of the petitioner and her husband Gurpreet Singh, the child was brought to India by respondents No.4 and 5 i.e. the grand parents of the child. However, the child was not returned to the petitioner and hence, the present petition is maintainable. To buttress his arguments, he has relied upon the following judgments:-
1. Chhaganbhai Norsinbhai vs. Soni Chandubhai Gordhanbhai and others, 1976 AIR Supreme Court 1909;
2. Om Prakash vs. Suresh Kumar, 2020(13) SCC 188;
3. Smt. Lavanya C. and Anr. vs. Vittal Gurudas Pai since Deceased by LRs and Ors., 2025 AIR Supreme Court 1565;
4. Shakuntala Sahadevram Tiwari (Smt.) and Another vs. Hemchand M. Singhania, Law Finder Doc Id # 1214540;
5. Balram Singh vs. Bhikam Chand Jain, 1986 (1) RCR (Criminal) 160;
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6. Joginder Singh Sekhon and another vs. State of Punjab and others, Law Finder Doc Id # 2735610;
7. Rashneet Kaur vs. State of Haryana and others, 2022(3) RCR (Civil)
192.
Learned counsel for the petitioner has contended that the present petition was earlier disposed of by this Court on the statement made by counsel for respondents No.4 and 5 that the child would be taken back to Australia before 30.06.2025, however, they have refused to take the child back to Australia and thus, the present petition is maintainable and custody of the child be given to the petitioner.
4. Learned counsel for respondent No.5 has vehemently opposed the submissions made by counsel for the petitioner. He has submitted that earlier the statement was made by counsel for respondents No.4 and 5 without taking consent of respondents No.4 and 5. It has been submitted that the petitioner though is the mother of the child, however, she has concealed the true facts of the case and thus, has mislead the Court to get a favourable order from this Court. He submits that father of the detenue had met with an accident and he is bed ridden. It is submitted that the petitioner is not living with her husband in Australia and custody of the child was given to the grand parents only to get rid of the child. He submits that earlier also, after the birth of the child, he remained with the grand parents for about 13 months. He has submitted that contempt petition filed by the petitioner against the order dated 27.05.2025 has been dismissed by this Court vide order dated 21.07.2025 and appeal filed against the same has also been allowed to be dismissed as withdrawn by Hon'ble Division Bench of this Court vide order dated 28.08.2025. He submits that after having been 4 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -5- filed the contempt petition, the petitioner clandestinely returned to Australia and it is, thereafter, she again come to India. It has been submitted that father of the child had intentionally not been impleaded in the present petition only to conceal the true facts of the case. He submits that for deciding the custody of the child, the present petition for issuance of writ in the nature of habeas corpus, in the peculiar facts and circumstances of the case, is even not maintainable. He has submitted that paramount consideration is the welfare of the child and keeping in view the facts and circumstances of the case, welfare of the child does not lie in the custody of the mother. He, thus, submits that neither the present petition is maintainable nor welfare of the child lies in the custody of the petitioner. He has relied upon the judgments in Nirmala vs. Kulwant Singh and others, 2024 AIR (Supreme Court) 2344; Silky Sharma vs. State of Punjab and others, in CRWP-8029-2024 decided on 08.05.2025 and Sonia vs. State of U.T. Chandigarh and others, Law Finder Doc Id # 2160673.
5. The Court has heard counsel for the parties and appreciated the record with their able assistance. From the facts and circumstances of the present case, this is an admitted fact that the petitioner is the mother of the detenue, namely, Gurshabad Singh Sidhu. The issue involved in the present case is whether custody of the child in the peculiar facts and circumstances of the case can be decided in the present petition filed by the petitioner for issuance of direction in the nature of habeas corpus. Admittedly, the petitioner and Gurpreet Singh i.e. father of the detenue had entered into marriage on 28.05.2021, which was the second marriage of both of them. A male child i.e. the detenue was born out from this marriage on 11.11.2022.
5 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -6- As submitted before this Court, father of the detenue met with an accident and presently, is bed ridden. The child was brought to India as evidence from the record of the case with the consent of the petitioner and father of the child. It is also revealed from the case that earlier also the child remained with respondents No.4 and 5 i.e. the grand parents of the child for about 13 months. There is no gainsaying that the child is below the age of five years, however, during the maximum period, he was in the custody of his grand parents. This Court had put a specific query to counsel for the petitioner and the petitioner, who was present in Court, regarding the stand of the father of the child. The Court has also put to them query that why the father of the child has not been impleaded as a party to the present petition. No convincing answer had been provided by the petitioner regarding the same. Record of the case gives rise to various disputed questions of fact. As per the law settled, paramount consideration for arriving at the decision regarding custody, is welfare of the child. Though the issue regarding the custody of the child can also be dealt in a habeas corpus petition, however, the same would depend upon the facts and circumstances of each case. In the case in hand, there is no specific information regarding the father of the child. On the other hand, child has been in the custody of the grand parents with the consent of the parents. There is no dispute regarding the judgments relied upon by the petitioner, however, in the facts and circumstances of the case, this Court finds that the same are distinguishable, whereas, in the facts and circumstances of the case, this Court finds the remedy of habeas corpus petition filed, to be not maintainable. Paramount consideration for the Court is only the welfare of the child. In the case in hand, which is replete with 6 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -7- disputed questions of fact. Thus, this Court is of the opinion that the present hebeas corpus petition would not be maintainable. The Civil Court in a Civil suit filed by respondents No.4 and 5 has also granted status quo. Thus, the view taken by the Court is supported by the judgment of Hon'ble Supreme Court in Nirmala's case (supra). Relevant part of the judgment reads as under:-
"12. It can thus be seen that this Court has held that the habeas corpus is a prerogative writ which is an extraordinary remedy. It has been held that recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. It has been held that 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. It has further been held that 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.
13. This Court further held that 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. It has been held that there are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. It has further been held that what is important is the welfare of the child. It has been further held that where the court is of the view that detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court.
14. In the facts of the said case, this Court found that the child being a minor, aged 1V2 years, cannot express its intelligent preferences and in the facts and circumstances of said case, the
7 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -8- father being the natural guardian was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.
15. The same legal position has been reiterated by this Court in the cases of Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba (supra) and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and others 2022 SCC OnLine SC 885.
16. It can thus be seen that no hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child is concerned. As to whether the writ court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case.
17. In the present case, it will be relevant to refer to the case pleaded by the respondent-father. The learned Single Judge of the High Court himself recorded the submissions of the respondent-father in the impugned judgment as under:
"He further submitted that when the wife of the petitioner died, then at that point of time due to psychological and social reasons, the child was sent to the maternal grand- parents which was the need of the hour at that time since the petitioner himself was also under psychological stress and a family environment was required for the child especially from the grand-parents and that was the sole reason as to why the son of the petitioner who at that point of time was of the age of 5 years was sent to them to be taken care of."
18. It can thus be clearly seen that according to the case of the respondent-father himself, in the peculiar facts and circumstances of the case, a family environment was required for the child especially from the grandparents and that he had placed the custody of the minor child with the appellant- grandmother for taking his care. It can thus clearly be seen that it is not a case that the appellant-grandmother had illegally kept the custody of the minor child. It is the 8 of 9 ::: Downloaded on - 09-11-2025 18:38:08 ::: CRWP-4774-2025 -9- respondent-father who had placed the custody of the minor child with the appellant-grandmother.
19. We are of the considered view that in the peculiar facts and circumstances of the case, the High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India. Since a detailed enquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890.
20. In any case, we are of the view that a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances.
21. In our view, an exercise promoting the bond between the minor child and the respondent-father in a graded manner and thereafter considering the grant of custody of minor child to the respondent-father taking into consideration the paramount interest of the welfare of the minor child would be required to be done in the present matter. Such an exercise would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution of India."
6. In view of the totality of the of the circumstances of the present case, the present petition is hereby dismissed. Consequently, application bearing No.CRM-W-816-2025 stands infructuous. However, the parties would be at liberty to avail their alternative remedy in accordance with law. Needless to say that if any such remedy is availed by the parties, the view expressed herein would have no bearing.
(RAJESH BHARDWAJ)
14.10.2025. JUDGE
sharmila Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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