Somya Goel vs The State (Govt. Of Nct Of Delhi) & Anr.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.05.2026
Pronounced on: 10.06.2026
+ W.P.(CRL) 4294/2025
SOMYA GOEL .....Petitioner
Through: Ms. Geeta Luthra, Senior
Advocate with Mr. Aadarsh
Kothari and Ms. Spriha Jha,
Advocates for petitioner with
Petitioner present in person
( through VC ).
versus
THE STATE (GOVT. OF NCT OF DELHI) & ANR.
.....Respondents
Through: Mr. Sanjay Lao, Standing
Counsel (Criminal) with Mr.
Abhinav Kumar, Mr. Aryan
Sachdeva and Mr. Priyam
Aggarwal, Advocates for the
State with Insp. Surendra, SI
Sumit, PS-Jagat Puri.
Mr. Vinit Trehan, Mr. Yash
Srivastava, Ms. Rashi Agarwal
and Mr. Param Jeet Singh,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. This petition has been filed under Article 226 of the
Constitution of India read with Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (‘BNSS’), seeking issuance of a Writ in the
nature of Habeas Corpus directing the respondent no.2 to produce the
minor daughter of the petitioner and to restore the custody of the
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minor daughter with the petitioner.
CASE OF THE PETITIONER
2. It is the case of the petitioner that the petitioner (mother) and
the respondent no.2 (father) met in Singapore in the year 2016. On
18.11.2016, the petitioner and respondent no.2 got married in
Ghaziabad, Uttar Pradesh in accordance with the Hindu rites and
ceremonies. The marriage came to be registered on 08.02.2017.
3. After their marriage, the petitioner and respondent no.2 set up
their matrimonial home in Singapore. The minor daughter of the
petitioner and the respondent no.2 was born on 28.09.2021 in
Singapore, but is an Indian citizen.
4. It is the case of the petitioner that ever since the birth of the
daughter, the respondent no. 2 and his family have continuously
subjected the petitioner and the minor child to cruelty, neglect and
emotional harassment, which has adversely affected the welfare of the
child. It is asserted that throughout the year 2023, the respondent no. 2
exhibited immature and irresponsible behaviour concerning the care of
the minor child and, in January 2024, he complained about the child’s
school fees and domestic help expenses.
5. It is further asserted that during a visit to Mumbai in February
2024, the parents of the respondent no. 2, especially his mother,
emotionally as well as physically harassed the petitioner and denied
basic substances, such as milk, to the minor child, forcing the brother
of the petitioner to arrange for the same.
6. On 12.03.2024, the minor child was diagnosed with Autism
Spectrum Disorder (ASD). The petitioner, therefore, took the minor
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child for daily therapies in Greater Noida, bearing significant
expenses, while the respondent no.2 provided minimal financial
support and, in fact, blamed the petitioner for the lost school deposit.
He also emotionally harassed her and even forced her to resign from a
well-paying job. He used to verbally abuse not only the petitioner but
also the minor child.
7. It is asserted that the respondent no.2 is a habitual alcoholic and
the petitioner is fearful for the well-being of her minor daughter.
8. It is further asserted that the petitioner and the minor child
resided in India from 26.02.2024 until 17.12.2024, when the
respondent no.2 deceitfully persuaded the petitioner to return to
Singapore with the minor child, promising reconciliation and
advanced medical care for her. Upon arrival, however, the abusive
behaviour of the respondent no. 2 escalated; he confiscated the
passport of the petitioner, the travel documents of the minor child, and
the petitioner’s jewellery; and even attempted to force her into signing
divorce papers. He started to indulge in physical assault, sexual
violence, confinement, sleep deprivation, and spying on the petitioner
through spyware.
9. Fearing for her safety, the petitioner contacted the police at
Singapore, who facilitated her departure from Singapore on
25.12.2024, but she could not bring the minor child back as her travel
documents had been illegally and forcefully withheld by respondent
no.2, and respondent no. 2 had threatened to file a false case of
abduction against the petitioner.
10. It is further asserted that the petitioner returned to Singapore on
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05.07.2025 and filed a complaint with the police in Singapore on
12.07.2025, fearing for the safety and well-being of the minor
daughter.
11. On 15.07.2025, the petitioner even obtained a restraint order
against the respondent no.2 from the Family Justice Courts of
Singapore due to his threats and violence. In retaliation, respondent
no.2 instructed his new domestic help to actively alienate the minor
child from the petitioner, due to which the child suffered autistic
meltdowns. This also led to a drop in the child’s BMI. A complaint in
this regard was filed by the petitioner with the Singapore police on
06.08.2025. The petitioner also filed a complaint with the SHO, PS
Jagatpura, Delhi, on 07.08.2025, through her Power of Attorney.
12. It is asserted that on 06.08.2025, the respondent no.2
unilaterally removed and abducted the minor child to an undisclosed
location in Singapore and terminated the Dependent’s Pass and
residency of the petitioner in Singapore with the intention to compel
her deportation.
13. The petitioner has also filed a Guardianship Petition and an
application for interim custody in India. She also filed complaints with
the Ministry of External Affairs and the Indian High Commission
seeking intervention.
14. The petitioner asserts that as the minor child is suffering from
ASD, she requires the love, care, and nurturing environment of her
mother for her welfare and development.
15. For invoking the jurisdiction of the Court, the petitioner asserts
as under: -
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“11. That this Hon’ble Court has the inherent
and requisite jurisdiction to entertain the
present Writ Petition as the minor child was
removed from the lawful jurisdiction of this
court in a clandestine under false pretexts and
misrepresentation.”
Case Of The Respondent No. 2 (Father)
16. On notice of this petition being issued to the respondent no. 2,
the respondent no. 2 has filed a detailed reply, wherein he has prayed
for the dismissal of the petition, alleging concealment of material facts
by the petitioner. It is asserted that the petitioner has failed to disclose
the proceedings before the Courts at Singapore and the orders passed
therein.
17. It is asserted that the respondent no. 2 filed an Originating
Application for Divorce, bearing No. FC/OAD 464/2025, titled
Rajaraman Karthik v. Goel Somya , before the Family Justice Courts,
Singapore, on 27.01.2025, that is, much before the institution of the
present petition. Multiple pleadings, affidavits, and contested
applications have been filed by both parties in those proceedings, the
details of which have been concealed by the petitioner before this
Court. For the sake of ready reference, the averments of these filings,
as mentioned in the reply filed by the respondent no.2, are detailed as
under :-
S.No. Particulars of
Proceedings/Documents
Date Filed
1. Originating Application
for Divorce bearing No.
FC/OAD 464/2025 filed
by the Respondent
husband
27.01.2025
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For understanding-FC
stands for Family Courts
and OAD referred as
Originating Application
(Divorce).
Copy of the Originating
Application for Divorce
bearing No FC/OAD
464/2025 filed by the
Respondent-husband is
herein annexed and
attached as
ANNENURE-R1
2. Summons bearing No
FC/SUM 1540/2025 filed
to the Petitioner/Somya-
wife challenging the
jurisdiction of the
Singapore courts SUM
stands for Summons
Copy of the Summon
bearing No FC/SUM
1540-2025 filed by the
Petitioner/Somya-wife
challenging the
jurisdiction of the
Singapore courts is
herein annexed and
attached as
ANNENURE-R/2
07.07.2025
3. Affidavit filed by the
Petitioner/Somey-wife in
support of FC/SUM
1540/2025
Copy of the affidavit filed
by the Petitioner/Somya-
wife in support of
FC/SUM 1540 2025 is
herein annexed and
attached as
ANNEXURE-R/3
07.07.2025
4. Summons bearing No
FC/SUM 1583/2025 filed
by be Petitioner/Somya-
wife seeking urgent
14.07.2025
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relocation of the minor
child to India
Copy of the Summer
hearing No. FC/SUM
1583/2025 filed by the
Petitioner/Somya-wife
seeking urgent relocation
of the minor child to
India herein annexed and
attached as
ANNENURE. R/4
5. Affidavit filed by the
Petitioner/Somya-wife in
support of FC/SUM
1583/2025
Copy of the Affidavit filed
by the Petitioner/Somya-
wife in support of 'SUM
1583/2025 is herein
annexed and attached as
ANNEXURE-R/5
14.07.2025
6. Supplemental Affidavit
filed by be
Petitioner/Somya-wife in
support of FC/SUM
1540/2025 Copy of the
Supplemental fluid by the
Petitioner/Somya-wife in
support of FC/SUM
1540/2025 is herein
annexed and attached as
ANNEXURE-R/6
12.08.2025
7. Affidavit in Reply filed by
the Respondent husband
Copy of the Affidavit in
Reply filed by the
Respondent-husband
dated 27.08.2025 is
herein annexed and
attached as
ANNEXURE-R/7
27.08.2025
8. Supplemental Affidavit
filed by the Respondent-
husband
Copy of the Supplemental
28.08.2025
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Affidavit filed by the
Respondent-husband
dated 28.08.2025 is
herein annexed and
attached as
ANNEXURE-R/8
9. Affidavit in Reply filed by
the Petitioner/Somya-
wife.
Copy of the Affidavit in
Reply filed by the
Petitioner/Somya-wife
dated 02.10.2025 is
herein annexed and
attached as
ANNEXURE-R/9.
02.10.2025
10. Further Affidavit in Reply
filed by the Respondent-
husband
23.10.2025
18. It is further asserted that the Family Justice Court of the
Republic of Singapore, vide order dated 20.08.2025, was pleased to
grant personal protection in favour of the respondent no. 2 and the
minor daughter, against the petitioner.
19. It is asserted that by order dated 25.11.2025, the challenge of
the petitioner to the jurisdiction of the Singapore Courts was rejected,
and her application seeking relocation of the minor child from
Singapore to India was also rejected.
20. It is asserted that these facts have been intentionally and
deliberately concealed by the petitioner from this Court, and the
present petition is liable to be dismissed on the ground of concealment
alone.
21. It is further asserted that the petitioner had also filed a petition
under the Guardians and Wards Act, 1890, being GP 30/2025, titled
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Somya Goel v. Kartik Rajaraman , before the learned Family Court at
Karkardooma, Delhi; as well as a Divorce Petition, being HMA
1430/2025, titled Somya Goel v. Kartik Rajaraman, thereby invoking
an alternate jurisdiction. It is submitted that the present petition is,
therefore, liable to be dismissed also on the ground of the availability
and invocation of an alternate efficacious remedy by the petitioner.
22. It is asserted that the present petition is also liable to be
dismissed on the ground of delay and laches.
23. The respondent no. 2 further asserts that the welfare and the
best interests of the minor child require her to continue to stay in
Singapore, where she is under the continuous care of specialized
institutions, including the NUH Child Development Unit, ABA
Therapy Centers, and a structured preschool environment tailored to
her sensory and developmental needs. The minor child has also shown
measurable improvement in her physical and mental well-being.
24. Respondent no. 2 further categorically denies all allegations
made against him and his family members by the petitioner and, in
fact, asserts that it is the petitioner who did not take care of the minor
child and, through her behaviour, caused further emotional damage to
the child.
25. It is asserted that the petitioner abruptly abandoned the
matrimonial home at Singapore on 25.12.2024 and returned to India,
abandoning the minor child. She also transferred a sum of SGD
207,000/- from Singapore to her bank account in India. There were
several other transactions between December 2024 and March/April
2025, showing that the petitioner was emptying her bank account so
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that she could avoid contributing to the matrimonial funds governed
by the financial framework applicable in Singapore. On the other
hand, it is the respondent no. 2 who is solely and all alone looking
after the welfare of the minor child and her treatment.
26. Respondent no. 2 asserts that instead of taking care of the minor
child, the petitioner undertook an expensive leisure trip to the United
States of America and Canada with her parents and sister between
March and May 2025. She also sent inappropriate messages defaming
the respondent no. 2 to his employer, friends, relatives, and neighbour.
27. He also makes counter-allegations against the petitioner for ill-
treating the minor child.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR
THE PETITIONER
28. Ms.Geeta Luthra, the learned senior counsel for the petitioner,
submits that the marriage between the petitioner and the respondent
no.2 was solemnised in accordance with Hindu rites and ceremonies in
2016. They were blessed with a minor daughter, who is presently only
four years old and is an Indian Citizen. Placing reliance on the
judgment of the Supreme Court in Y. Narasimha Rao & Ors. v. Y.
Venkata Lakshmi & Anr. (1991) 3 SCC 451 and of this Court in
Padmini Hindupur v. Abhijit S. Bellur, 2015 SCC OnLine Del 7484,
she submits that the only law applicable to matrimonial disputes is the
one under which the parties got married. She submits that the
jurisdiction assumed by the Court at Singapore must be in accordance
with the matrimonial law of India and merely because the petitioner
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filed a reply to the claim filed by the respondent no.2, albeit under
protest and challenging the jurisdiction of the said Court, the same
should not be considered as a submission to the jurisdiction of the said
Court and its decision on merits, thereby being binding on the Indian
Courts.
29. She submits that the Singaporean Courts have no jurisdiction
over the present matter as the minor child is not an ordinary resident
of Singapore. She places reliance on the judgment of the Supreme
Court in Smt. Jeewanti Pandey v. Kishan Chandra Pandey , (1981) 4
SCC 517, of this Court in Philip David Dexter v. State NCT of Delhi
& Anr. , 2013 (135) DRJ 537 (DB) and Paul Mohinder Gahun v.
Selina Gahun , 2006 (90) DRJ 77.
30. She submits that the minor daughter was diagnosed with ASD
on 12.03.2024 and it is crucial for her to have a nurturing environment
that caters to her unique needs. She submits that the petitioner is the
primary caregiver to the minor daughter since her birth and the
respondent no.2 has always been negligent towards her treatment. She
places reliance on the judgment of this Court in Paul Mohinder
Gahun (supra) and of the Supreme Court in Yashita Sahu v. State of
Rajasthan & Ors., (2020) 3 SCC 67, to submit that a girl child of
tender age benefits from the mother’s custody. She submits that even
otherwise, in accordance with Section 6(a) of the Hindu Minority and
Guardianship Act, 1956, the custody of a minor child under the age of
five shall ordinarily be with the mother.
31. Placing reliance of the judgments of the Supreme Court in
Gohar Begum v. Suggi Alias Nazma Begum & Ors. , 1959 SCC
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OnLine SC 8, and Ruchi Majoo v. Sanjeev Majoo , (2011) 6 SCC 479,
she submits that the welfare of the child should be of the paramount
importance, and in the present case, the same lies with the minor being
in the custody of the petitioner. She submits that the factual matrix
demonstrates that every action of the respondent no.2, from the
deceitful removal of the child to the subsequent neglect and abuse, has
been in direct opposition to minor child’s welfare.
32. Placing reliance on the judgment of the Supreme Court in
Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr., 2009 SCC OnLine
SC 1893; of the Bombay High Court in Abhay v. Neha Joshi & Anr. ,
2023 SCC OnLine Bom 1943; and of the Singaporean Courts in XLK
v. XLJ (2025) SGHC (A) 22 and BDU v. BDT [2014] SGCA 12, she
submits that the custody of the child is to be determined by the
country with which the child has an intimate contact. A child
habitually resident in a country, unilaterally taken to a foreign country
must be returned in the child’s best interest. In this regard, the learned
senior counsel also places reliance on the Hague Convention of 1980
on ‘Civil Aspects of International Child Abduction’. She submits that
in the present case, the minor daughter, despite being born in
Singapore, has spent the most crucial stages of her early life in India
surrounded by her maternal family and underwent structured ASD
therapies at Yatharth Hospital in Noida. Hence, it is in the best interest
of the minor child that she is brought back to India.
33. The learned senior counsel further contends that a Habeas
Corpus petition is maintainable, even during the pendency of a
guardianship petition, to restore custody where parents have been
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unlawfully deprived. She submits that when a child is removed from
the territorial jurisdiction of a High Court, a Habeas Corpus petition
can lie. In this regard, she places reliance on the judgment of this
Court in Paul Mohinder Gahun (supra); of the High Court of
Bombay in Pravin Nathalal Parghi v. State of Maharashtra & Ors. ,
2025 SCC OnLine Bom 3100; of the High Court of Allahabad in Ayra
Khan & Anr. v. State of U.P. & Ors. , 2024 SCC OnLine All 2426;
and, of the High Court of Andhra Pradesh in Alekhya Yalamanchili v.
State of Andhra Pradesh & Ors ., 2012 SCC OnLine AP 779.
34. Without prejudice to her above submissions, she contends that
even if this Court wishes to not exercise its extraordinary discretionary
jurisdiction and refers the matter to the learned Family Court, interim
custody/visitation rights over minor daughter can still be granted to
the petitioner. She places reliance to this effect on the judgment of this
Court in Richa Bhasin v. Commissioner of Police and Ors., 2000
(52) DRJ (DB) and of the High Court of Bombay (Panaji-Goa) in
Ketaki Gokhale v. State of Goa & Ors. , 2023 SCC OnLine Bom 698.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT NO.2
35. The learned counsel for the respondent no.2 submits that a Writ
of Habeas Corpus in child custody matters is maintainable only when
the custody is unlawful or without any authority. He submits that the
custody of the minor daughter with her father, that is, the respondent
no. 2 cannot be deemed as being illegal. He submits that the Supreme
Court in a catena of judgments has held that in child custody matters,
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the ordinary remedy lies before the learned Family Courts. He
highlights that in cases where a thorough examination of facts is
required, the Court can choose not to use its extraordinary jurisdiction
and instead instruct the parties to seek relief before the Civil Courts. In
support, he places reliance on the judgment of the Supreme Court in
Tejaswini Guad & Ors. v. Shekhar Jagdish Prasad Tewari & Ors .,
(2019) 7 SCC 42; of the High Court of Allahabad in Shradha
Kannaujia (minor) & Anr. v. State of U.P. & Ors. , 2022 SCC OnLine
All 955 and Krishnakant Pandey (Corpus) & Ors. v. State of Uttar
Pradesh & Ors. , 2021 SCC OnLine All 1993; of the High Court of
Rajasthan in Dharmendra Choudhary v. State of Rajasthan & Ors.,
2024 SCC OnLine Raj 3770; and, of the High Court of Madras in V.
Krishnapriya v. Inspector of Police & Anr., 2025 SCC OnLine Mad
7457.
36. He submits that even otherwise, the petitioner has concealed
various material facts and judicial orders pronounced by the Courts of
Singapore to erroneously persuade this Court to entertain the present
petition. He submits that therefore, the present petition is liable to be
dismissed on the ground of concealment. In support of his submission,
he places reliance on the judgment of the Supreme Court in K.D.
Sharma v. Steel Authority of India Ltd. & Ors. , (2008) 12 SCC 481.
37. He reiterates that the welfare of the child is in the custody of the
child remaining with the respondent no.2 at Singapore.
38. He submits that hence, the present petition is devoid of any
merit and is liable to be dismissed.
ANALYSIS AND FINDINGS
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39. We have considered the submissions made by the learned
counsels for the parties.
40. At the outset, we would note that the various proceedings
before the Court at Singapore that had taken place even prior to the
filing of the present Writ Petition by the petitioner, and have not been
disclosed by the petitioner in the present Writ Petition. Whether the
petitioner wilfully submitted to the jurisdiction of the Court at
Singapore or she did so under protest, one thing remains and cannot
be disputed, is that she has to truthfully disclose these proceedings in
the Writ Petition if she is to invoke the extraordinary discretionary
jurisdiction of this Court. Concealment alone is a sufficient ground to
dismiss the present Writ Petition and for refusing to exercise the
discretionary jurisdiction of this Court under Article 226 of the
Constitution of India.
41. Even otherwise, from the above narration of facts and
submissions of both the parties, it is evident that the minor child was
born in Singapore and, except for the period between February 2024
and 17.12.2024, when she came to India, she has primarily remained
in Singapore. It is also evident that on 17.12.2024, the minor child had
travelled back to Singapore along with the petitioner and the
respondent no. 2. The petitioner left the custody of the minor child in
the hands of the respondent no.2 when she travelled back to India on
25.12.2024. She thereafter went back to Singapore on 06.07.2025, and
though she filed certain complaints, references to which have been
given in the petition, the present Writ Petition was filed by her only on
16.12.2025, which is almost one year after she first left Singapore
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without the minor child.
42. In between, various developments took place in the matrimonial
proceedings filed by the respondent no.2 in Singapore, which resulted
in an order dated 25.11.2025 passed by the Family Justice Courts of
the Republic of Singapore, which is prior to the filing of the present
Writ Petition. By the said order, the Family Court at Singapore
dismissed the applications filed by the petitioner, being SUM
1540/2025, seeking stay of proceedings in favour of Indian
jurisdiction, and SUM 1583/2025, seeking relocation of the minor
child to India, by observing as under:
“I dismiss the Wife’s summons to stay
proceedings in favour of Indian jurisdiction.
… I find that the Wife has not discharged her
burden of showing that India is more
appropriate than Singapore for the hearing of
the marital dispute. Although both parties are
Indian nationals and solemnised their
marriage in India, they have resided primarily
in Singapore for more than a decade, and the
Husband has been gainfully employed in
Singapore under an Employment Pass.
The Wife has resided in Singapore since 2013
and the Husband since 2014. The Wife was
also employed in Singapore until October
2023. It was only in 2024 that she had an
extended stay in India from February to
December 2024, and thereafter, left Singapore
from December 2024 to July 2025.
More significantly, the child of the marriage
was born in Singapore in 2021, and her
schooling and special needs treatment for
autism and ADHD are currently connect ed to
Singapore. Issues of maintenance would
likewise centre on cost of living issues
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pertinent to Singapore.
As for the Wife’s claim that there are parallel
proceedings in India, note that the first Indian
filings by the Wife were on 23 May 2025 ( for
guardianship) and 29 July 2025 (for divorce),
some time after the 27 January 2025 filing in
the present case. The Indian matters also have
not proceeded substantively. I therefore did
not find the doctrine of lis alibis pendens to
apply in the present case.
Finally, I do not find that the Wife would be
prejudiced if proceedings continued in
Singapore. She is not barred from entry to
Singapore, and according to the Husband, has
means to contest the proceedings having
withdrawn a significant sum of $207,000 from
her Singapore bank accounts. She has also
demonstrated that she can file applications in
Singapore, having regard to her multiple PPO
applications against the Husband and his
family members. She has also shown herself
capable of filing complaints to both the SPF
and the CPS. She therefore would not suffer
any prejudice if the case proceeded here.
xxx
I similarly dismiss the Wife’s application in
SUM 1583/2025.
I note that four-year old __ is on the autistic
spectrum , has ADHD and has developmental
and behavioral issues. Since her return to
Singapore, she appears to have gained healthy
weight, attends school full time on weekdays,
and receives home based ABA therapy on
weekends. She also continues to attend regular
medical checkups at the National University
Hospital (NUH), and is on a structured diet
plan prescribed by the NUH feeding clinic.
While the Wife has put forward a care plan on
an intended school and medical professional
treatment upon the proposed return to India, I
note that the disruption to the child over the
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period when the mother and child were in
India in 2024 and the recent disruptions
following disputes since July 2025 have had a
negative impact on the child’s condition. For
the child’s best interest, stability and status
quo should prevail, and it would clearly be
preferable for her to remain in Singapore.
Further, the Father has demonstrated that he
has the support required in terms of domestic
help to support the child’s daily needs. By
contrast, the Wife left the home in December
2024, and spent the first half of 2025 away
from the child, including a two month holiday
in North America. She is not to my mind best
placed to cater to the daily needs of the child
at present.
I further note that the Husband has pointed out
that in May 2024, the Wife had been
diagnosed by an Indian doctor to be suffering
from episodic schizophrenia and bipolar
disorder, and was prescribed strong
medication. That is also a significant factor
militating against placing the child in her sole
care by way of a relocation to India.
I accordingly dismiss SUM 1583/2025.”
43. Though the above order may not be binding on this Court, it
would have a persuasive effect keeping in mind the comity of Courts.
Most importantly, and as noted hereinabove, the petitioner
intentionally concealed this order from this Court while filing the
present Writ Petition.
44. We are also mindful of the fact that the petitioner has, during
the pendency of the present petition, instituted a suit before the
learned Family Court, Karkardooma Court, seeking an anti-suit
injunction against the respondent no.2 restraining him from
proceeding against her in the divorce case filed by him in Singapore.
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In the said proceedings, vide an order dated 28.01.2026, the learned
Family Court while deciding an application under Order XXXIX Rule
1 and 2 of the Code of Civil Procedure, 1908, has been pleased to pass
an ad-interim ex-parte injunction in favour of the petitioner till the
next date of hearing. However, we find that the said proceedings are
of no relevance to the present petition.
45. In Tejaswini Guad & Ors. (supra), the Supreme Court,
considering the maintainability of a Writ Petition of Habeas Corpus on
a question of custody of a minor, held that the Writ, being a
prerogative process of securing the liberty of the subject by affording
an effective means of immediate release from an illegal or improper
detention, the Court should leave the parties to an alternative remedy
where, in the circumstances of a particular case, the ordinary remedy
provided by law is available and is effective. We quote from the
judgment as under:-
“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
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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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.”
46. The Supreme Court further held that while deciding child
custody cases, the Court is not bound by the mere legal rights of the
parent or guardian, but is to be guided by the welfare of the minor,
which has to be the prime consideration. The welfare of the child has
to be determined keeping in view all the facts and circumstances, and
the Court cannot take a pedantic approach.
47. As far as the Hague Convention is concerned, we may note that
India is not a signatory to the same.
48. In the present case, the minor child is unfortunately suffering
from ASD. She is getting her treatment from Singapore, where she
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was taken with the consent of the petitioner. As noted hereinabove, the
petitioner travelled back to India and has filed the present petition
belatedly. There are also allegations of her transferring all her funds to
an account in India, and also travelling to Canada and the USA in the
interregnum .
49. We are referring to these facts not to give a conclusive opinion
on the welfare of the child or whether custody should be with the
petitioner or the respondent no. 2, but only to indicate that there are
various factors which need to be considered in detail for determining
the said question.
50. The petitioner has already initiated proceedings under the
Guardians and Wards Act, 1890 and has also filed proceedings
seeking a divorce from the respondent no.2.
51. The proper and appropriate remedy for the petitioner to seek
custody and visitation with the child, given the above factors as also
the various disputed questions of fact, would, therefore, lie before the
concerned Family Court and cannot be determined in a summary
jurisdiction on affidavits by us in this Writ Petition.
52. We must also note herein that the respondent no.2 has
challenged the territorial jurisdiction of not only this Court but also of
the learned Family Court by contending that, as per the petitioner’s
own case in her guardianship petition, the minor child was last
residing in Ghaziabad, UP, where the parents of the petitioner reside.
It has been asserted that when this objection was taken before the
learned Family Court, the petitioner produced a false Lease Deed
showing that just days before shifting to Singapore, she had stayed in
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Delhi. She also filed an application seeking amendment of the
petition. It is asserted by the respondent no.2 that the minor child was
never an ordinary resident of Delhi and, therefore, the courts at Delhi
lack territorial jurisdiction. This disputed question of fact would also
need to be determined by the competent court.
53. In view of our above observations, we decline to exercise our
discretion under Article 226 of the Constitution of India in the present
Writ Petition, and instead leave the petitioner to agitate her claim of
custody and visitation with the minor child before the competent
Family Court. We further clarify that any and all observations made
by us hereinabove should in no manner influence the competent court
to adjudicate such claims on merits, as these observations are made
only for the purpose of determining whether we would like to exercise
our discretionary jurisdiction in the present Writ Petition, and they do
not constitute a final determination of the disputed facts and issues
raised before us.
54. With the above clarification and reserving liberty in favour of
the petitioner, the present Writ Petition is dismissed.
55. There shall be no order as to costs.
NAVIN CHAWLA, J
RAVINDER DUDEJA, J
JUNE 10,2026/ rv /ik
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