Vikram Sharma vs Govt Of Nct Of Delhi & Ors.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on:
Pronounced on:
22.04.2026
04.05.2026

+ W.P.(CRL) 806/2026
VIKRAM SHARMA .....Petitioner
Through: Mr.C.M. Grover and Ms.Payal
Budhiraja, Advs.

versus

GOVT OF NCT OF DELHI & ORS. .....Respondents
Through: Mr.Sanjay Lao, SC (Crl.) with
Ms.Priyam Agarwal, Mr.Aryan
Sachdeva, Mr.Abhinav Kr.
Arya for R-1 to R-3/State with
SI Gunjan Singh, ER-II, Crime
Branch
Mr.Suraj Prakash Sharma, Adv.
for R-4 to R-7

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 (hereinafter referred to as ‘BNSS’), seeking
issuance of a Writ in the nature of Habeas Corpus, directing
production of the minor daughter of the petitioner- Ms. XXX, who is
in the custody of the respondent nos.4 to 6, that is the parents-in-law
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and the brother-in-law of the petitioner.
2. It is alleged in the petition that the marriage of the petitioner
was solemnized with Late Uma Sharma, daughter of the respondent
no.4 on 23.11.2023. From the wedlock, Ms. XXX was born on
28.08.2024. She is presently aged about 1 ½ years. Unfortunately, on
24.09.2025, the wife of the petitioner committed suicide by hanging
herself. On a complaint filed by the respondent no.4, FIR bearing
no.520/2025 under Section 80/3(5) of the Bharatiya Nyaya Sanhita,
2023 was registered at Police Station: Welcome inter alia against the
petitioner. The petitioner was arrested in the same on 29.09.2025, and
remained in custody till 13.01.2026. He was thereafter released on bail
pursuant to the order passed by the learned Additional Sessions Judge,
Shahdara, Karkardooma Courts, Delhi. It is alleged that on the death
of the wife of the petitioner, the respondent nos. 4 to 6 had taken away
Ms. XXX in their custody.
3. The petitioner alleges that on being released on bail on
13.01.2026, he sought custody of the minor child and even
approached Police Station: Welcome with a complaint dated
25.02.2026 made to the DCP (North East), seeking assistance in
obtaining the custody of the minor child, however, since no action was
taken on the same, he approached the Court of the learned Judicial
Magistrate First Class (JMFC), Shahdara, Karkardooma Courts, Delhi
with another complaint under Section 223 read with Section 175(3) of
BNSS, 2023, wherein notice has been issued and Action Taken Report
has been called by the learned JMFC (Shahdara). Another complaint
under Section 100 of BNSS has also been filed by the petitioner
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before the said Court but was withdrawn vide order dated 07.03.2026
with liberty to approach appropriate forum. Hence, the petitioner has
preferred the present Writ petition.
4. The learned counsel for the petitioner submits that, as the
petitioner is the father of the minor child, he is the natural guardian
and is, therefore, entitled to the custody of the minor child. He submits
that the respondents not being the natural guardians, are illegally
retaining the custody of the minor child and, therefore, appropriate
directions ought to be passed in the present Writ Petition directing
them to hand over the custody of the minor child to the petitioner. In
support of his submissions, he places reliance on the judgment of the
Supreme Court in Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad
Tewari & Ors. , 2019 7 SCC 42.
5. On a notice of this petition being issued to the respondent nos.4

to 6, they have filed a reply, inter alia, challenging the very
maintainability of the present writ petition by contending that the writ
jurisdiction cannot be used as a substitute for regular custody
proceedings under the Guardians and Wards Act, 1890 or under the
Hindu Minority and Guardianship Act, 1956. In support of the said
submission, the learned counsel for the respondents has placed
reliance on the judgment of the Punjab and Haryana High Court in
Jaspreet Singh v. State of Punjab & Ors. , 2026:PHHC:056584.
6. It is further submitted that the petitioner is involved in a
criminal case involving the suicide of his wife and the mother of the
minor child, therefore, he is not fit to obtain the custody of the minor
child. In support of the said submission, reliance is placed on the
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judgment of the Supreme Court in Nil Ratan Kundu v. Abhijeet
Kundu , (2008) 9 SCC 413, and of the Allahabad High Court in
Shaurya Gautam v. State of U.P. , 2020 SCC OnLine all 1372.
7. We have considered the submissions made by the learned
counsels for the parties.
8. On the issue of the maintainability of the present writ petition,
we are instructed by the judgment of the Supreme Court in Tejaswini
Gaud (supra) which has held that a writ of Habeas Corpus extends
also to cases where the custody of a minor is retained by a person
illegally. The Supreme Court in the above case clarified that, in
appropriate cases, the writ petition would be maintainable for
restoration of the custody of a minor from a person who according to
personal law is not his legal or natural guardian. We quote from the
judgment as under:
“14. 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.

20. In child custody matters, the ordinary
remedy lies only under the Hindu Minority and
Guardianship Act or the Guardians and Wards
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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 of
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.”


9. The above view is followed by the Supreme Court in Gautam
Kumar Das v. NCT of Delhi & Ors., ( 2024) 10 SCC 588, and in
Vivek Kumar Chaturvedi & Anr. v. State of U.P. & Ors. , (2025) 4
SCC 342.
10. The Supreme Court in the above three cases has also held that
the writ petition filed by the father of the minor child, who was being
detained by the maternal family of the child, would be maintainable.
11. In Nil Ratan Kundu (supra), the Supreme Court while
considering an application filed by the father of the minor child under
the Guardians and Wards Act, 1890 seeking custody, reiterated that in
determining the question as to who should be given the custody of the
minor child, the paramount consideration is the welfare of the child; it
is not the rights of the parents under the statute for the time being in
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force. The Court also observed that as the child was six years old, the
High Court should have interacted with the child. The Court further
held that one of the matters which is required to be considered by the
Court in these matters is the ‘character’ of the proposed guardian. The
Court should keep in mind the relevant statutes and the rights flowing
therefrom, but such cases cannot be decided only by interpreting legal
provisions, as it involves a human problem and is required to be
solved with human touch. The Court exercises parens patriae
jurisdiction in such matters. It was emphasised that it is not a negative
test, that is, that the father is unfit or disqualified to have custody of
the child, that is relevant, but the positive test, that is the custody
would be in the welfare of the minor, which is material. On the facts
of the said case, the Court took cognizance of the allegations against
the father of assaulting the mother leading to her death as also of the
child being found in a sick condition at his residence.
12. In Shaurya Gautam (supra), the Court while reiterating the
above principles and denying the father’s claim for custody of the
minor children in a writ of Habeas Corpus, had not only interacted
with the elder of the two minor children but also was influenced by the
fact that the father was facing trial on the charge of murder of his wife.
The Court opined that in the totality of circumstances on record,
unless acquitted, it would not be appropriate to place the two minor
children in the custody of the father.
13. Applying the above principles to the facts of the present case,
admittedly, till the unfortunate demise of his wife, the custody of the
minor child was with the petitioner, of course, along with the deceased
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wife. In the reply filed by the respondent nos. 4 to 6, apart from the
reference to the criminal case and the objection on the maintainability
of the present petition, there is no other reason given as to why the
petitioner would be unfit to take the custody of the minor child,
though he is her natural and legal guardian.
14. As far as the criminal case against the petitioner is concerned,
the learned counsel for the petitioner has drawn our attention to the
order dated 13.01.2026 passed by the learned Additional Sessions
Judge, whereby the petitioner has been released on bail. It inter alia
observes as under:
“From all the above-stated diary notes, it
appears that deceased was an emotional and
sensitive person. Even in past prior to her
marriage, she was having suicidal thoughts,
may be due to her oversensitive nature. She
used to love her husband (applicant/ accused).
She wanted to live happily with her husband.
In the entire diary notes, there is no mention
qua any dowry demand made to her by her
husband or his family members.

8. Even as per allegations of the complainant,
dowry harassment was qua non-giving of top
model of Swift car in marriage which had
taken place two years ago. Even this alleged
harassment was not soon before the death of
the deceased. Thus, in the present case, there
are no specific allegations against applicant/
accused in regard to the demand of dowry
soon before the death of the deceased. There
are only general allegations, however, there is
no specific allegation or instance of cruelty or
dowry demand soon before the death of the
deceased.

10. Similarly in the present case, whatever be
the cause of death of the deceased, her parents
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have instantly alleged allegations of dowry
demand and murder which are not supported
by the circumstances of the case. Though, the
unfortunate death of the deceased did occur
within two years of the marriage, however, the
proof or otherwise of dowry demand having
been made by the applicant/ accused and his
family members would be best left for the trial
and no observations regarding the same would
be justified at this stage in view of the above-
stated circumstances.”

15. Though the learned counsel for the respondent nos.4 to 6
submits that the notes alleged to be made by the deceased in the diary
that had been relied upon by the learned Additional Sessions Judge,
are forged and have been written by the petitioner himself and a report
in this regard has also been called from the Forensic Science
Laboratory (FSL), however, as the learned Additional Sessions Judge
has also relied upon them and reached a prima facie conclusion as
reproduced hereinabove, we need not say anything further on that
aspect at this stage. In case upon receipt of FSL report, the diary is
found to be forged, we are sure that appropriate action shall be taken
by the learned Trial Court and the respondent nos.4 to 6 would also be
free to reclaim the custody of the minor child. At this stage, however,
based on the prima facie view of the learned Trial Court, it cannot be
said that the petitioner is not entitled to the custody of the minor child
only because of the pendency of the above criminal case pending
against him. The petitioner being the natural guardian in terms of
Section 6 of the Hindu Minority and Guardianship Act, 1956, is
entitled to the custody of the minor child.
16. In the present case, the minor child is aged only about 1 year
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and 8 months and is unable to express her opinion or feelings
regarding the custody. Therefore, we have to be guided by the nature’s
law, wherein the father would be better suited to take care of the needs
and welfare of the child as compared to the maternal grandparents and
uncle.
17. Keeping in view the above, we direct the respondent nos.4 to 6
to hand over the custody of the minor child to the petitioner forthwith.
We, however, reserve liberty in the respondent nos.4 to 6 to seek
modification of this judgment in case of any subsequent development
in the criminal case, including receipt of the FSL report.
18. We further direct the petitioner to give reasonable unrestricted
visitation rights over the minor child to the respondent nos.4 to 6,
which, for the present, we fix as between 11 AM and 6 PM on every
Saturday. This, however, is only an interim arrangement and the
petitioner and the respondent nos.4 to 6 may move appropriate
applications to seek modification in the arrangement before the
learned Family Court.
19. The petition is disposed of in the above terms.


NAVIN CHAWLA, J


RAVINDER DUDEJA, J
MAY 04, 2026/ ns/pb
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