Harjeet Kaur vs State Of Punjab And Ors

CRWP No.7195 of 2026(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRWP No.7195 of 2026(O&M)
Date of Order: 10.09.2026
Harjeet Kaur
..Petitioner
Versus
State of Punjab and others
..Respondents
Sr. No. Particular

1. The date when the judgment is reserved 03.09.2026
2. The date when the judgment is pronounced 10.09.2026
3. The date when the judgment is uploaded on the 10.09.2026
website
4. Whether only operative part of the judgment is Full
pronounced or full judgment is pronounced
5. The delay, if any, of the pronouncement of full Not
judgment and reasons thereof applicable.
CORAM: HON'BLE MS. JUSTICE SHALINI SINGH NAGPAL
Argued by: Mr. Pawandeep Singh, Advocate for the petitioner.
Mr. Hardeep Singh Wadhwa, DAG Punjab.
Mr. Briz Mohan, Advocate for respondents No. 4 to 8.
SHALINI SINGH NAGPAL , JUDGE
Mother of minor girl child aged 2 ½ years, has approached this
Court for issuance of a writ in the nature of Habeas Corpus for release of
minor child Gurnaaz Kaur from custody of respondents No. 4 to 8, her
father and his family members.
2. Petitioner has averred that she was married with respondent No.
4 on 08.07.2022 as per Sikh Rites and Ceremonies. It was second marriage
of both. Petitioner had no child from her first marriage, though respondent
REEMA SAINI
No.4 had a 15 years old boy. Petitioner, who was working as Senior
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CRWP No.7195 of 2026(O&M) -2-
Assistant (Centre for Distance and Online Education), at Punjab University
since 2013, maintained balance between her professional and personal life.
Few months after the marriage, behaviour of respondent No.4 and his family
members changed . They started ill treating and torturing the petitioner to
compel her to bring more dowry, though sufficient dowry was given at the
time of marriage. Respondent No.4 started demanding petitioner’s salary
every month and asked her to transfer money on regular basis in his account,
which she did. Respondent No.4 also physically assaulted her on various
occasions. During her pregnancy, respondent No.4 wilfully neglected his
duties and obligations and caused mental and emotional harassment to the
petitioner. He neglected and failed to provide essential care to the petitioner
during her ailments. He never provided maintenance to her or the child and
all requirements of the minor child were taken care of by the petitioner.
Respondent No.4 had regular communication with his former wife and
levelled false and defamatory allegations against the petitioner extending
threats. Petitioner left matrimonial home on 12.09.2025 and started living
in her parental home. Thereafter also, respondent created unnecessary
scenes.
3. Petitioner further pleaded that on 20.04.2006, in her absence,
respondent No.4 took away minor child Gurnaaz Kaur from her parental
house on false promise of dropping her back by evening but did not do so.
Despite repeated requests, he did not hand over custody of the child and was
openly demanding Rs.15 lac to 20 lac to give her back. He was also
extending threats to kill the petitioner. Respondents No.4 and his family
members had criminal history and political back ground. Various complaints
were moved to SHO and to senior police officers but no action was taken.
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CRWP No.7195 of 2026(O&M) -3-
The minor child required care and custody of the petitioner. The
environment in the house of the respondents was abusive. Two FIRs were
already registered against respondents and conduct and behaviour of
respondent No.4 was unsafe for the minor child, who was illegally detained.
Respondent No.4 not only had criminal antecedents, he was habitual of
taking intoxicants. He was black mailing the petitioner to give him large sum
of money to take the minor child back. The minor child was not safe in
custody of respondent No.4 and his family members.
4. Upon notice, respondents No. 4 to 8 put in appearance and filed
reply claiming that the writ petition was false, abuse of the extraordinary
jurisdiction of the Court. It was stated that respondent No.4 was the
biological father of the child. His custody was not illegal or unlawful.
Permanent custody of the child could not be granted in proceedings under
Article 226 of the Constitution of India as disputed questions of facts were
involved and appropriate remedy for the petitioner was to institute
proceedings under Guardian and Wards Act, 1890. Petitioner voluntarily
left the matrimonial home eight months before filing the petition, without
any sufficient cause or lawful excuse and deserted respondent No.4. She
failed to discharge her matrimonial obligations. Prior to marriage, she had
been suffering from psychiatric ailments and was taking treatment for the
same, which fact she concealed from respondent No.4. The child was living
happily with her father and was getting proper love, care, affection and
emotional support. She was regularly attending school. Her education,
physical and emotional needs were being taken care of. Apart from her
father, her grandparents and other family members were always available to
look after the child. Petitioner, who was working as Senior Assistant in
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CRWP No.7195 of 2026(O&M) -4-
Punjab University, remained occupied during working hours and could not
devote personal time for upbringing of the child. No case was made for
issuance of writ in the nature of Habeas Corpus. All other allegations
regarding demands for dowry, cash, mental, physical and emotional
harassment were etc., were denied. It was stated that vague, unsubstantiated
allegations were levelled without independent evidence. Petitioner
voluntarily left the matrimonial home and thereafter, refused to return
despite efforts made by respondent No.4 for reconciliation. Respondent
No.4 and his family members always extended due care and support to the
petitioner. Allegations of consumption of alcohol and other habits were
stated to be false. Prayer for dismissal of petition was made.
5. Learned counsel for petitioner argued that petitioner was ill-
treated, harassed and exploited during her stay in the matrimonial home.
The minor detenue Gurnaaz Kaur, aged 2.5 years, was illegally taken away
by respondent No.4 on 20.04.2026 in petitioner’s absence and he refused to
return the child despite repeated requests instead was raising unreasonable
demands of money from the petitioner. Considering the tender age of the
minor and her welfare, her custody needed to be restored to the petitioner,
who was best suited to look after the physical, emotional and other needs of
the child. It was further argued that petitioner was employed as Senior
Assistant in Punjab University, Chandigarh and was financially sound
th
whereas respondent No.4 was only 10 pass, with no income. He had been
extracting money from the petitioner and did not have the financial
resources to look after the child. Moreover, he was in regular contact with
his first wife and son and the atmosphere in his house was not conducive to
the welfare of the child. Representation Annexure P-4 was made to the SSP
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CRWP No.7195 of 2026(O&M) -5-
SAS Nagar Mohali, regarding the forceful removal and wrongful detention
of minor detenue but no action was taken. In support of his arguments,
learned counsel for petitioner refers to Master Atharva (minor) and another
Versus State of U.P. AIR online 2020 ALL 2142, Kinjal d/o Haresh Kumar
Panchal Versus State of Gujarat R/SCR.A/471/2026, Mrs. Manju Tiwari
Versus Dr. Rajendra Tiwari and others AIR 1990 SC 1156 and Mandeep
Kaur versus State of Punjab and others CRWP-1423 of 2019, decided on
03.11.2020.
6. Learned counsel for respondents argued that respondent No.4
was biological father of the minor child and other respondents were his
family members. Custody of the minor child with respondent No.4, who was
the natural guardian, could not be termed illegal. Thus, the writ of Habeas
Corpus was not maintainable. Appropriate remedy available to the petitioner
was to file a petition for custody under Guardians and Wards Act, 1890,
before the competent Court. It was further argued that petitioner deserted
respondent No. 4 and abandoned him. She failed to discharge her
matrimonial obligations. She was suffering from psychiatric illness. Welfare
of the child was with her father. The minor was receiving proper love, care ,
affection and emotional support from respondent No.4 and his family
members. She was regularly attending school and all her needs were well
taken care of. Petitioner, on the other hand, was a full time government
employee and remained occupied during her working hours, unable to
devote adequate time for upbringing of the child. The petition was abuse of
process of law and deserves dismissal.
7. Petitioner and respondent No.4 are the biological parents of the
detenue. Respondent No.4 is her natural guardian under Section 6 of the
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CRWP No.7195 of 2026(O&M) -6-
Hindu Minority and Guardianship Act, 1956 (for short the HMG Act). The
question of maintainability of a Writ of Habeas Corpus filed by one natural
guardian against the other, in respect of custody of a minor, was considered
by Hon’ble Supreme Court in Tejaswini Gaud and others Versus Shekhar
Jagdish Prasad Tewari and others 2019 AIR Supreme Court 2318. The Court
observed that a Writ of Habeas Corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of immediate
release from an illegal or improper detention. The writ also extends its
influence to restore the custody of a minor to his guardian when wrongfully
deprived of it. The detention of a minor by a person who is not entitled to his
legal custody is treated as equivalent to illegal detention for the purpose of
granting writ, directing custody of the minor child. For restoration of the
custody of a minor from a person who according to the personal law, is not
his legal or natural guardian, in appropriate cases, the writ court has
jurisdiction.
8. The Court further observed as under:
‘ 18. 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 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
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CRWP No.7195 of 2026(O&M) -7-
proved that the detention of a minor child by a parent or
others was illegal and without any authority of law. ’
9. In Criminal Appeal No. 127 of 2020 SLP (crl.) No. 7390 of
2019 titled Yashita Sahu Vs. State of Rajasthan and others decided on
20.01.2020 as well, Hon'ble Supreme Court observed as under:-
“9. It is too late in the day to urge that a writ of habeas corpus is
not maintainable if the child is in the custody of another parent.
The law in this regard has developed a lot over a period of time but
now it is a settled position that the court can invoke its
extraordinary writ jurisdiction for the best interest of the child. This
has been done in Elizabeth Dinshaw vs. Arvand M. Dinshaw &
Ors. (1987) 1 SCC 42, Nithya Anand Raghavan vs. State (NCT of
Delhi) & Anr. (2017) 8 SCC 454 and Lahari Sakhamuri vs. Sobhan
Kodali (2019) 7 SCC 311 among others. In all these cases the writ
petitions were entertained. Therefore, we reject the contention of
the appellant wife that the writ petition before the High Court of
Rajasthan was not maintainable.’’
10. Identical view has been expressed by Hon’ble Supreme Court in
a recent pronouncement in Suryakanth M. Raikar Versus The State of
Karnataka and otherss, arising out of S.L.P. (Crl.) No.8172 of 2026, decided
on 19.08.2026.
11. Thus, the position of law is that though ordinarily, basis for
issuance of a Writ of Habeas Corpus is illegal detention, in the case of a writ
in respect of detention of a child, the law is concerned not so much with the
illegality of detention as with the welfare of the child. A writ of habeas
corpus to recover the custody of the minor child would thus be maintainable.
Mere availability of an alternative remedy of filing custody petition under
the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards
Act, 1890, does not bar issuance of a Writ of Habeas corpus.
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CRWP No.7195 of 2026(O&M) -8-
12. The question which this Court is now confronted with is
whether welfare of the minor detenue/girl child namely Gurnaaz Kaur, aged
2.5 years, requires that her custody be restored to the petitioner.
13. Both rival parties have levelled all kinds of allegations against
each other. A Writ Court must refrain from recording findings on the
allegations and counter allegations of the parties with regard to the
matrimonial cruelty which petitioner has alleged and respondent No.4 has
rebutted. As said hereinbefore, the prime consideration which should weigh
in the mind of a Writ Court is the welfare of the child.
14. The minor namely Gurnaaz Kaur is a very young child aged 2.5
years. Considering the tender age, she cannot have any say about her choice
for custody. The principle that welfare of a young child is best secured by
the mother is embodied in Section 6-A of the Hindu Minority and
Guardianship Act, 1956 which is extracted below;
“6. Natural guardians of a Hindu 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--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
(b) in case of an illegitimate boy or an illegitimate
unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband: Provided
that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this
section--
(a) if he has ceased to be a Hindu, or
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CRWP No.7195 of 2026(O&M) -9-
(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi). Explanation.--In this section,
the expression "father" and "mother" do not include a
step-father and a step-mother."
15. From the bare provision reproduced above, it comes out that
custody of a minor who is less than 5 years of age, shall ordinarily be with
the mother. Thus, the right of the father to be the natural guardian of the
property of a minor is preserved but not of his/her person, if the child is less
than 5 years old.
16. The Allahabad High Court in M aster Atharva (minor) and
another Versus State of U.P. AIR online 2020 ALL 2142, has observed that
‘the word "ordinary" signifies that as a matter of rule, children up to the age
of five years are to be left with their mothers, but there could be exceptions
as well. Those exceptions could be where the mother is demonstrably
leading an immoral life or may have remarried, where in her new home, the
child from her earlier alliance has no place, or where the mother is convicted
of a heinous offence etc.’
17. The principle that is engrafted under Section 6- (a) of the Act,
1956 is the golden thread that runs across various statutes.
18. Section 13 of the Hindu Minority & Guardianship Act, 1956
declares in unequivocal terms that the welfare of the minor would be the
paramount consideration when it comes to a Court appointing a guardian for
a Hindu minor.
“ 13. Welfare of minor to be paramount consideration.--(1) In the
appointment of declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount
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CRWP No.7195 of 2026(O&M) -10-
(2) No person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in
marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor."
19. Section 2 of the Hindu Minority & Guardianship Act, 1956 also
makes it clear that the provisions of the Guardian and Wards Act would be in
addition and not in derogation of the Hindu Minority and Guardianship Act,
1956.
20. Section 17 of the Guardian and Wards Act also states that while
appointing a guardian the Court shall be guided by the circumstances that is
for the welfare of the minor.
“17. Matters to be considered by the Court in appointing
guardian.
--(1) In appointing or declaring the guardian of a minor, the
Court shall, subject to the provisions of this section, be guided
by what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of
the minor.
NEUTRAL CITATION R/SCR.A/471/2026 JUDGMENT
DATED: 11/02/2026 undefined (2) In considering what will
be for the welfare of the minor, the Court shall have regard to
the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to
the minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian with
the minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
(omitted) (5) The Court shall not appoint or declare
any person to be a guardian against his will."
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CRWP No.7195 of 2026(O&M) -11-
21. Though the Court can consult the child to reach a conclusion
what is best for his/her welfare, considering the age of the child, who is
barely 2- 1/2 years old and does not possess sufficient judgment, it is not
deemed fit to call the child for an interaction.
22. The term “welfare” has to be interpreted in its widest sense. The
moral, religious welfare of the child, her physical well being and financial
welfare are all relevant consideration. The child who is 2.5 years age,
certainly, needs her mother more than father. The mother in our case is
financially better off, more educated and well placed. All these factors,
considering the tender age of the child, work in her favour.
23. Though a feeble argument has been raised that the mother is
suffering from psychiatric illness, the claim must be repelled in the absence
of any credible material on record. The mother is a working professional,
serving as Senior Assistant in Punjab University. She is in regular
employment with 13 years of service to her credit. She is thus financially
secure. Respondent No. 4, the father, on the other hand has not come
forward with his education, employment and income. Petitioner claims that
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he is 10 class pass and unemployed. On the last date of hearing, this Court,
noticing that certain material facts regarding occupation, education and
income of respondent No.4 were not forthcoming and clarification was
required, posted the matter for rehearing. However, counsel for respondent
No. 4, did not appear to give necessary clarification. Appropriate inference
must accordingly be drawn.
24. A girl child, who is 2-1/2 years old can effectively be taken care
of by her mother. Such a small child has a special bond with the mother, who
no one else, not even the father can substitute. There can be nothing more
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CRWP No.7195 of 2026(O&M) -12-
cruel than to deprive an infant of her mother’s care, love and affection. This
is a well recognised feature of basic human nature, borne out of experience
and is also statutorily recognised. There are no glaring circumstances on
record to justify a conclusion that there are exceptional circumstances to
deprive the mother of the custody of the minor child. The petitioner is best
equipped to groom the small infant child into an adult.
25. For the reasons above, the petition is allowed with the following
direction:-
(i) respondent No.4 is directed to hand over the custody of
minor daughter to the petitioner on 22.09.2026 between 10.00
AM and 11:00 AM at parental house of the petitioner;
(ii) in case respondent No.4 fails to do so, respondents No.2 and
3 shall ensure that custody of minor daughter is immediately
handed over to the petitioner by taking over the same from
respondents No.4;
(iii) respondent No.4 shall be at liberty to file petition under the
HMG Act/the GW Act before the Guardian/Family Court for
custody of the minor daughter;
(iv) the Guardian/Family Court shall decide the question of
custody of the minor daughter uninfluenced by the observations
made by this Court by taking into consideration the welfare and
best of interest of the minor daughter.
(v) till decision of the custody petition, respondent No.4 shall be
entitled to meet the minor daughter on every Sunday for two
hours between 10.00 AM and 05.00 PM or make video calls to
the minor daughter for 15/30 minutes between 05.00 PM and
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CRWP No.7195 of 2026(O&M) -13-
06.00 PM as desired and to be conveyed in advance to the
petitioner by respondent No.4;and
(vi) respondents No.2 and 3 shall provide requisite protection to
the petitioner and the minor daughter against harm at the
instance of respondents No.4 and 5 during the period custody of
the minor daughter remains with the petitioner.
26. All the pending miscellaneous applications, if any, stand
disposed of.
(SHALINI SINGH NAGPAL)
JUDGE
10.09.2026
reema
Whether speaking/reasoned : Yes
Whether reportable : Yes

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