P&H HC Orders Father To Hand Over Under-5 UK-Born Girl To UK-Based Mother For Now, Citing Child’s Welfare

The petitioner and respondent No. 5 married in 2020 and moved to the United Kingdom, where their daughter was born on 5 April 2022.

In June 2025, the father brought the child to India; she remained with her paternal grandparents after he returned to the United Kingdom.

The mother alleged that the child had been wrongfully retained and sought her return through proceedings in the United Kingdom.

Orders of the English Family Division found, provisionally, that the child had been wrongfully removed and directed her return to England and Wales.

The mother then sought habeas corpus relief in the High Court of Punjab and Haryana.

The father opposed the petition, asserting that the child was in the custody of her natural guardian and had been brought to India with the mother’s consent.

The Court interacted with the parties and the child before deciding the custody question.

Under Article 226 of the Constitution, habeas corpus may be invoked in child-custody matters, including where the child is with a parent; the inquiry is directed to the child’s welfare, and the writ is available where the circumstances warrant it, rather than being confined to a narrow legality-of-detention test (Yashita Sahu v. State of Rajasthan, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari).

The availability of a statutory custody remedy, including under the Hindu Minority and Guardianship Act, 1956, does not by itself bar the writ where that remedy is not efficacious in the circumstances.

Section 6 of that Act identifies the father as the natural guardian and provides that custody of a child below five years would ordinarily be with the mother.

The child’s welfare remains paramount, and comity between courts is relevant but does not displace an individual assessment of that welfare (Yashita Sahu).

The Court rejected the objection that habeas corpus was unavailable because the child was with her father, and held that the alternative statutory remedy did not prevent relief in this case.

On welfare, it considered that the child was under five, had been born in the United Kingdom and was a British citizen; her mother lived and worked there, while the father was in India.

The English court orders directing the child’s return were relevant, though the Court treated the child’s welfare—not comity alone—as decisive.

The Court’s interaction with the child indicated that she was comfortable with her mother after reassurance.

It found that the father’s allegations about the mother’s conduct, even if accepted, did not establish that she would neglect the child.

Weighing these circumstances, the Court concluded that the child’s welfare, for the time being, favoured custody with her mother.

The father was directed to hand over the child to the mother on 18 November 2026 at 11:00 a.m. at her parental home; if he failed to do so, the Senior Superintendent of Police, Nawanshahr, and the concerned SHO were directed to ensure the transfer.

The parties remained at liberty to seek a final custody determination before a competent court, which must decide the matter on its merits and uninfluenced by the High Court’s observations.

The Court also provided for the father’s contact with the child, subject to any orders of the United Kingdom courts, and directed the police to ensure a safe and smooth handover.