Rahul Kamboj And Others vs Isha Ajain @ Ishaa Kamboj

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LPA-2434-2026 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
129 LPA-2434-2026 (O&M)
RAHUL KAMBOJ AND OTHERS …..APPELLANTS
Vs.
ISHAA JAIN @ ISHAA KAMBOJ …..RESPONDENTS
Sr. No. Particular Details
1 The date when the judgment is reserved 03.09.2026
2 The date when the judgment is pronounced 21.09.2026
3 The date when the judgment is uploaded on the website 23.09.2026
Whether only operative part of the judgment is pronounced Full
4 or full judgment is pronounced
The delay, if any, of the pronouncement of full judgment, Not applicable
5 and reasons thereof
CORAM: HON’BLE MR. JUSTICE SUVIR SEHGAL
HON’BLE MR. JUSTICE RAJESH GAUR
Argued by: Mr. Amit Jhanji, Senior Advocate with
Mr. Sayyam Garg, Advocate and
Ms. Kudrit Kaur Sra, Advocate for the appellants.
Mr. Anil Goel, Advocate (Through VC)
for the respondent
*
SUVIR SEHGAL, J.
1. This intra-court appeal has been filed under Clause X of the
Letters Patent by a father and his family members,
challenging judgment dated 20.08.2026 passed by the learned Single Judge,
whereby a habeas corpus petition filed by respondent-mother has been
PRIYANKA
2026.09.23 12:22
I attest to the accuracy and
integrity of this document

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LPA-2434-2026 (O&M)
accepted and appellants have been directed to hand over custody of minor
child to her.
2. Mr. Amit Jhanji, learned Senior counsel appearing for the
appellants, has vehemently argued that a writ of habeas corpus is not
maintainable in matters involving a custody dispute between parents. He
asserts that the minor child has been residing in a comfortable and a well-
provided environment under the continuous care of the father-appellant No.1
for the last more than a year. He urges that the appropriate remedy available
to the mother is to approach the competent Civil Court under the Hindu
Minority and Guardianship Act, 1956. Reliance has been placed by him
upon judicial precedents to buttress his arguments.
3. Per contra , Mr. Anil Goel, counsel for the respondent-mother
submits that appellant No.1 and respondent were married on 20.09.2018, and
a male child, namely Vivaan, was born out of the wedlock on 02.04.2022.
He states that there was a marital discord between the parties and that on
15.03.2025, when respondent had gone to visit a doctor, the minor child was
forcibly taken away by the appellants and thereafter, respondent was neither
permitted to enter the matrimonial home nor given custody of the child. It
has been argued by him that under Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 , custody of a child under the age of five years must
ordinarily be given to the mother. He supports the order passed by the
learned Single Judge and relies upon judicial precedents to contend that
instant Letters Patent Appeal questioning the judgment passed in a criminal
writ petition, is not maintainable.
PRIYANKA
2026.09.23 12:22
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LPA-2434-2026 (O&M)
4. We have heard learned counsel for the parties at length and
have considered their submissions, besides perusing the record with their
able assistance.
5. The preliminary objection raised by appellants regarding the
maintainability of the habeas corpus petition in a custody dispute between
the parents, stands settled by the Hon’ble Supreme Court in Yashita Sahu
Versus State of Rajasthan and Others , (2020) 3 SCC 67; Manju Tiwari
Versus Dr. Rajendra Tiwari and Another, 1990 AIR SC 1156; Nil Ratan
Kundu and Another versus Abhijit Kundu, (2008) 9 SCC 413 and Roxann
Sharma Versus Arun Sharma, (2015) 8 SCC 318. In Yashita Sahu’s case
(supra), Apex Court has clarified the position and 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. It is only in exceptional cases, that the rights of the parties
concerning the custody of a minor can be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus. This Court is,
therefore, of the firm opinion that a petition for habeas corpus claiming
custody of a minor child, is maintainable.
6. In matters concerning custody of a minor, the welfare of the
child is the paramount consideration. The rights asserted by either parent
must necessarily yield to the welfare and the best interests of the minor.
Proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956,
lays down that custody of a minor who has not completed the age of five
years shall ordinarily be with the mother. The expression “ordinarily”
undoubtedly leaves the Court with discretion to depart from the rule where
PRIYANKA
2026.09.23 12:22
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LPA-2434-2026 (O&M)
the welfare of the child so warrants. However, such departure must rest upon
circumstances demonstrating that custody with the mother would be
detrimental to the welfare or interests of the child. Unless it is established
that the mother is unfit, immoral or incapable to take care of the minor, the
custody of the child should normally be entrusted to her. Her right to
custody remains paramount over the guardianship claim of any other relative
of the child.
7. In the present case, the child is approximately four years and
five months old. Although some allegations have been levelled against the
mother that she left the matrimonial home of her own and, despite being
given opportunities, she did not meet the child, but no material has been
brought to our notice which would persuade us to hold that she is incapable
or unsuitable to look after the minor. There is nothing on record to satisfy us
that restoration of custody of the minor to her would prejudicially affect the
child's welfare. Merely because the child has remained with father or his
family for a period of time cannot by itself confer a right upon them
particularly when the circumstances in which mother came to be separated
from the child are themselves in dispute. Financially stronger position of the
father, or the investments made by him, cannot replace biological and
emotional necessity of a mother's care for a four year old toddler.
8. Learned Single Judge has struck a balance between both the
parties. It has been rightly observed that a child of tender age requires the
care, affection and companionship of both parents. While placing the child
in the custody of the mother, appellants have been granted appropriate
visitation rights and access to the minor. Simultaneously, learned Single
PRIYANKA
2026.09.23 12:22
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LPA-2434-2026 (O&M)
Judge has protected the rights of the father by giving him liberty to approach
the appropriate Civil Court for seeking permanent custody of the child. This
Court does not find any illegality, perversity or jurisdictional error in the
well-reasoned judgment passed by the learned Single Judge which does not
warrant any interference.
9. As a result of the above discussion, Letters Patent Appeal is
dismissed, though with no order as to costs.
10. All pending miscellaneous application(s), if any, shall stand
disposed of.

(SUVIR SEHGAL)
JUDGE
(RAJESH GAUR)
JUDGE
21.09.2026
pry
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
PRIYANKA
2026.09.23 12:22
I attest to the accuracy and
integrity of this document