Jasjit Singh Mangat & Anr. vs Union Of India Through Ministry Of Home Affairs & Ors.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 23 April, 2026
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Uploaded on: 29 April, 2026
+ W.P.(CRL) 1183/2025
JASJIT SINGH MANGAT & ANR .....Petitioners
Through: Ms. Chand Chopra, Mr. Punishk
Handa, Advs. alongwith Petitioner No.
1 in person
versus
UNION OF INDIA THROUGH MINISTRY OF HOME AFFAIRS &
ORS. .....Respondents
Through: Ms. Radhika Bishwajit Dubey, CGSC
with Ms. Gurleen Kaur Waraich, Mr.
Kritarth Upadhyay, Mr. Vivek
Sharma, Mr. Amulya Dev Mishra,
Advs.
Ms. Anubha Bhardwaj, SPP along
with Ms. Ananya Shamshery, Ms.
Muskan Chawla, Advs. for R4
Ms. Priya Singh, GP
Mr. Attin Shankar Rastogi, Mr. Rajesh
Ranjan, Mr. Archit Chauhan, Mr.
Shivkant Arora, Mr. Adil Vasudeva,
Mr. Jigyasa Prashaer, Advs. for R5
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. This is a habeas corpus petition filed by the Petitioners - Mr. Jasjit
Singh Mangat and Mrs. Gyan Kaur Mangat seeking production of the minor
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son of Petitioner No. 1, who is currently residing in the United States of
America along with his ex-wife, Respondent No. 5 - Ms. Preet Kaur Dhillon.
3. The brief background of the case is that the Petitioner was married to
Respondent No. 5 on 21st July, 2003 in the USA as both the said parties were
citizens of the USA at the relevant time. Thereafter, they travelled to India
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and on 4 July, 2005 a daughter was born to them.
4. The couple then had a son through a surrogate mother in the USA. It is
the case of the Petitioner that Respondent No. 5 is not the biological mother
or the legal mother of the son as per the law in India. However, it is not
disputed that in all legal documents of the minor son such as passport etc., the
Respondent No. 5 has been reflected as the mother. It is stated that the couple
along with their children used to live in India and the elder daughter was
studying in the Shri Ram School, Delhi.
5. The mother of the Petitioner No. 1 i.e., Mrs. Gyan Kaur Mangat, on
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16 August, 2018 filed a complaint before the Police Station, Hazrat
Nizamuddin, Delhi stating that her daughter-in-law and both the grand-
children are missing after having gone to Sundar Nagar, Hazrat Nizamuddin.
It was also stated that the nanny or househelp who had accompanied the
missing persons had alone returned. The entire event was described by the
Petitioner No. 2 to the Police.
6. The Police had investigated the matter and as per the status report dated
24th May, 2024 filed in Crl.Rev.P. 79/2024 being pursued by the Petitioner
No. 1, which is on record, it was found that the Respondent No. 5 had left
India on 16th August, 2018 along with her two children without intimation to
the Petitioner No. 1. However, the status report also noted that an email had
been sent by the Respondent No. 5 to Petitioner No. 1 sometime after her
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flight had taken-off.
7. It is stated that proceedings of domestic violence and divorce had taken
place in the USA and it is the admitted position on record that the Petitioner
and his wife are now divorced. Thereafter, since 2018 both the children are
staying with the Respondent no. 5 in the USA.
8. The present petition has been filed in 2025 seeking habeas corpus and
certain other prayers which are as under:
“a) Pass appropriate writs, orders or directions in
the nature of habeas corpus qua #####, currently
incarcerated with Respondent No. 5 at 1543
Delaware Street, Berkeley, California, USA 94703,
praying that the minor child, ##### be physically
produced before this Honorable Court by
Respondent No. 5 forthwith, and if required, subject
to mirror Orders being passed by the Superior
Court of California, Alameda County, USA in Case
No. HF19011485, strictly without prejudice to the
rights of the Petitioner No. 1;
b) Pass appropriate writs, directions and orders
qua Respondents Nos. 1 [Ministry of Home Affairs]
and 3 [Delhi Police], whether under the Mutual
Legal Assistance Treaty dated 17 October 2001
between the Republic of India and the Government
of the USA, or otherwise in accordance with law,
seeking to implement the Orders of this Honourable
Court and if required, subject to mirror Orders
being passed by the Superior Court of California,
Alameda County, USA in Case No. HF19011485,
strictly without prejudice to the rights of the
Petitioner No. 1;
c) Pass appropriate Writs, Orders or directions qua
Respondent No. 2, i.e. the Ministry of External
Affairs, Government of India, directing it to exercise
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its powers vested in it through the Allocation of
Business Rules, with respect to Overseas Citizens of
India and to provide all the possible support and
assistance to the Petitioners/Petitioners Nos. 1 and
2 in connection with the present Writ Petition;
d) Pass appropriate Writs, Orders or directions qua
Respondent No. 4, i.e. the Central Bureau of
Investigation to implement the Orders of this
Honourable Court overseas, with the assistance and
cooperation of their counterparts in the USA and, if
required, to travel to California, USA to bring back
##### to be reunited with his father, Petitioner No.
1 in New Delhi, and if required, subject to mirror
Orders being passed by the Superior Court of
California, Alameda County, USA in Case No.
HF19011485, strictly without prejudice to the rights
of the Petitioner No.1;
e) Pass any other Writs/Orders/Directions that this
Honourable Court deems fit and appropriate in the
present case.”
9. The Court has heard the ld. Counsels for the Parties on several dates
and has also interacted with the Respondent No. 5 on two occasions.
10. The daughter of the Petitioner No. 1 has now attained majority and the
minor son has now been in the USA since 2018. The Respondent No. 5, being
the mother as reflected in all the legal documents including the passport of the
minor son, has allegedly taken away the children, as per the Petitioner,
without any intimation.
11. However, on behalf of the Respondent No. 5 it is submitted that the
vide email dated 16th August, 2018 she had informed the Petitioner that she
was bringing the children to the Petitioner who is stated to have been in the
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USA at the said time. Further it is the case of Respondent no.5 that the parties
had together decided to move back to the US and towards this end, the
Petitioner had taken a residential property as well. It is the same residence in
California in which the Respondent no. 5 and the children are currently living.
12. Clearly, there are factual disputes between the parties and, in the
opinion of the Court, the same cannot be gone into in a habeas corpus petition.
The habeas corpus petition having been filed almost 8 years after the children
were taken to the USA the disputed question of fact as to whether the
Respondent No. 5 had intimated the Petitioner prior to taking the children
cannot be determined in the present proceeding, especially, after significant
period having lapsed. It is the settled legal position that the Habeas Corpus
proceedings cannot be converted into custody battles for children. The
Supreme Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari,
(2019) 7 SCC 42, has held that the though a writ of Habeas Corpus would be
maintainable in cases where a minor has been detained by a parent illegally
or without authority of the law, however, availing the said extraordinary
remedy would be subject to the ordinary remedy is either unavailable or
ineffective. The relevant portion of the said judgement are extracted
hereunder:
“19. 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
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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 the Supreme Court and the 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.
20. 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
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 .”
13. Thus, it is clear that in cases of custody the welfare of the child is of
paramount concern irrespective of whether the proceedings are before this
Court or before the Guardianship Courts. The Supreme Court in Nirmala v.
Kulwant Singh, (2024) 10 SCC 595 has considered the decision in Tejaswini
Gaud (supra) and in the facts of the said case held that since a detailed inquiry
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would be required as to the welfare of the child, the writ of Habeas Corpus
ought not to be entertained. The relevant portion of the discussion is as under:
“23. It can thus be seen that this Court in Tejaswini
Gaud case [Tejaswini Gaud v. Shekhar Jagdish
Prasad Tewari, (2019) 7 SCC 42 : (2019) 3 SCC
(Civ) 433 ] 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.
24. This Court in Tejaswini Gaud case [Tejaswini
Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7
SCC 42 : (2019) 3 SCC (Civ) 433 ] 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 a detailed
enquiry is required, the court may decline to
exercise the extraordinary jurisdiction and direct
the parties to approach the civil court .
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25. In the facts of the said Tejaswini Gaud
case [Tejaswini Gaud v. Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42 : (2019) 3 SCC (Civ) 433]
, this Court found that the child being a minor, aged
1½ years, cannot express its intelligent preferences
and in the facts and circumstances of said case, the
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.
26. The same legal position has been reiterated by
this Court in Jose Antonio Zalba Diez Del
Corral [Jose Antonio Zalba Diez Del
Corral v. State of W.B., (2024) 12 SCC 419 : 2021
SCC OnLine SC 3434] and Rajeswari
Chandrasekar Ganesh v. State of T.N. [Rajeswari
Chandrasekar Ganesh v. State of T.N., (2023) 12
SCC 472]
27. 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 .
[…]
29. 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
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be seen that it is not a case that the appellant
grandmother had illegally kept the custody of the
minor child. It is the respondent father who had
placed the custody of the minor child with the
appellant grandmother.
30. 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 .
31. In any case, we are of the view that compelling
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.
32. In our view, an exercise for 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.
33. We therefore find that the High Court was not
justified in entertaining the petition under Article
226 of the Constitution of India. The impugned
judgment and order of the Punjab and Haryana
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High Court dated 23-8-2022 in Kulwant
Singh v. State of Haryana [Kulwant Singh v. State
of Haryana, 2022 SCC OnLine P&H 4281] is
quashed and set aside. The writ petition filed by the
respondent father is dismissed.”
14. Hence, it is clear from the above, that writ jurisdiction would not
ordinarily be exercised by High Courts, for deciding custody issues,
especially where a detailed inquiry would be required to ascertain the welfare
of the child. In the opinion of the Court, in the present case, the minor child
is with Respondent No. 5 who is recorded as his mother in all the official
records. The minor child was born in USA and is an American Citizen, similar
to the Petitioner No. 1 and Respondent No. 5. They also have Overseas
Citizens of India card. The minor child has now been living in the USA for
almost close to 8 years and hence, it would be necessary to consider all the
facts and circumstances by conducting a detail inquiry as to whether the minor
child’s best interest lies in living in India or the USA.
15. At this stage, the Petitioner states that he has also approached the
National Commission for Protection of Child Rights, Ministry of Women and
Child Development, Government of India (hereinafter “ NCPCR ”) for
mediation of this matter. This body is specially constituted to deal with such
transnational custody issues between spouses and families. Ld. Counsel
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submits that the application has been filed on 12 January, 2026 and the
mediation cell is likely to be constituted shortly.
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16. The Court has perused the Order dated 27 July, 2018 issued by the
Ministry of Women and Child Development (Child Welfare-I Section),
Government of India, whereby the Mediation Cell in NCPCR has been
constituted to resolve cases of children who were taken by one of the spouse
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without permission of the other spouse from either overseas countries to India
or vice-versa, and for preparing a Parental Plan with mutual consent of the
parties. The said direction has been passed pursuant to the provisions of
Section 3(iii), (iv) and (v) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter “ JJ Act ”), which form part of the general
principles of care and protection of children read with Section 13(a) of the
Commissions for Protection of Child Rights Act 2005 (hereinafter “ CPCR
Act ”). The Mediation Cell in NCPCR consists of the following:
(i) Chairperson, NCPCR - Chairperson.
(ii) Member, NCPCR (in the field of Laws relating to children) –
Member.
(iii) Member, NCPCR (in the field of child psychology or sociology) –
Member.
17. In addition to the above, the NCPCR may engage and take assistance
of one practicing child psychologist, one representative from National Legal
Services Authority working in the field of child custody or any other expert
whose services are necessary for participating the proceedings of the
Mediation Cell. The local mission of the country where one of the spouses is
residing may also be engaged by the Mediation Cell.
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18. As per the procedure laid down in the Order dated 27 July, 2018, either
of the parents, the present custodian of the child or the child herself/himself
can file an application to Section Officer, Child Welfare-I Section, New Delhi
(email: [email protected]) in the format attached to the said Order.
These cases would be considered by the Integrated Nodal Agency in the
Ministry of Child Development, and depending on facts of the cases, the said
agency will refer the matter to the Mediation Cell for developing a Parental
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Plan. The mediation process may be completed within six months of the
receipt of the application, failing which the same shall be considered to be
over. The Integrated Nodal Agency may refer the case back to the Mediation
Cell for one Review after recording its reasons. Upon completion of the
process, the Mediation Cell shall furnish a report to the Integrated Nodal
Agency which shall issue a speaking order on the basis of the same.
19. Under these circumstances, the NCPCR is a body which is now
extensively dealing with such matters where the children are either brought to
India or taken away from India by one of the parents. The NCPCR has a
complete framework which is working for resolution of such matters through
mediation.
20. Accordingly, in the opinion of this Court, the Petitioner ought to pursue
his remedy before the NCPCR itself and this is not an ideal case for
entertaining a Habeas Corpus petition under Article 226 of the Constitution
of India.
21. The Petitioner is also permitted to pursue the criminal revision petition
being Crl.Rev.P. 79/2024 in accordance with law.
22. The petition is disposed of in the above terms. Pending applications, if
any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
MADHU JAIN
JUDGE
APRIL 23, 2026/ ys/msh
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