Writ of Habeas Corpus Not A Substitute For Evidence-Based Determination Of Child Custody Dispute: Punjab & Haryana High Court

The Punjab and Haryana High Court held that the writ of Habeas Corpus cannot be a substitute for meticulous and evidence-based determination of child custody dispute.

A Writ Petition was filed by the mother of a four years old child to direct the father to hand over the custody to her.

The Bench of Justice Sumeet Goel observed, “The writ of Habeas Corpus is not a substitute for meticulous and evidence-based determination of custody dispute. It is not to be utilized as a subterfuge to circumvent the proper statutory forums and its exercise must be reserved for exceptional circumstances, where the pre-requisite jurisdictional fact is established for its invocation. As a general principle, a minor-child the custody of one of his natural guardians cannot, as a matter of course, be deemed to be in unlawful or illegal custody, absent a specific order to the contrary issued by a competent Court. This factum necessitates that writ Court in such cases exercise judicial restraint & deference, allowing the parties to seek their remedies through these apropos statutes, save in cases, where welfare of minor-child necessitates an indulgence by the writ Court.”

Advocate Chetan Goyal represented the Petitioner, Advocate Gurpartap Singh Bhullar and Advocate Siddharth Gupta represented the Respondents.

Case Brief

A Writ Petition was filed by the mother of a four years old child to direct the father to hand over the custody to her. The father of the child had filed a divorce petition in January, 2024, wherein, the mother had filed an application for visitation rights. However, the divorce petition was withdrawn.

Subsequently, the mother filed a petition under the Domestic Violence Act. The Court declined to direct the father to allow her to meet the child. The mother also sought for the custody of the child under Section 25 of the Guardians and Wards Act, which was still pending.

Court’s Observation

The legal issue before the High Court was the realm of exercising the jurisdiction of the High Court in a Habeas Corpus writ petition when there was a statutory alternative remedy available.

While referring to Article 226 of the Constitution of India, the High Court opined, “Accordingly, it is true posit of our Constitutional jurisprudence that the jurisdiction exercised by the High Court under Article 226 is required to be exercised once the Court is satisfied regarding existence of injustice or arbitrariness and any restriction, whether self imposed or statutory, stands removed in such a situation and no rule or technicality in the exercise of such power can stand in the way of the High Court for rendering justice…There is no gainsaying that, while a writ Court is endowed with wide and plenary jurisdiction, empowered to administer justice and uphold Constitutional rights, it must exercise such authority with due caution and judicial restraint.”

The High Court was of the opinion that the writ of Habeas Corpus is inherently procedural in nature and deals with the machinery of justice and not with the substantive law. Thus, the issue of illegality or unlawfulness of detention was a key jurisdictional fact for the issuance of the writ of Habeas Corpus.

The Bench was also of the opinion that in custody disputes pertaining to a minor-child, the conventional recourse has been through the provisions of relevant guardianship statutes including the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act.

“Given the existence of such an efficacious and readily available alternative remedy, a writ Court should, as a matter of general judicial discipline and restraint, ordinarily refrain from intervening. To do otherwise would be to improperly arrogate to itself a jurisdiction that rightfully belongs to the Courts designated under these specific statutes. The extraordinary jurisdiction of a writ Court should be invoked only when the foundational jurisdictional fact of minor-child being in illegal custody is demonstrably established or such exercise of jurisdiction is warranted by welfare of minor child”, the Court observed.

It was highlighted that in all matters related to child, the paramount consideration for the Court has been the welfare of the child.

The Court also observed that the High Court's jurisdiction to issue a writ of Habeas Corpus in minor child custody matter is predicated on the fact that the minor child's custody was demonstrably illegal/unlawful. In appropriate cases, the High Court may relax this jurisdictional prerequisite, in the interest of welfare of minor children.

Accordingly, the Writ Petition was dismissed.

Cause Title: Veerpal Kaur V. State of Punjab & Ors (Neutral Citation: 2025:PHHC:113490)

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