Habeas Corpus Plea Not Substitute To Custody Proceeding Available Under Guardianship Act: Punjab & Haryana High Court

The Punjab and Haryana High Court has observed that a habeas corpus petition cannot serve as a substitute for custody proceedings under the guardianship laws like Hindu Minority and Guardianship Act. It clarified that High Court can intervene only when it is clear case of illegality.

Justice Sumeet Goel said,

"The High Court's jurisdiction to issue a writ of Habeas Corpus in minor child custody matter is predicated on the basic jurisdictional fact, namely, the minor child's custody is demonstrably illegal/unlawful. In appropriate cases, the High Court may relax this jurisdictional prerequisite, in the interest of welfare of minor child."

The Court further said, writ of Habeas Corpus is not a substitute for meticulous and evidence-based determination of custody dispute. It is not to be utilized as a subterfuge to circumvent the proper statutory forums and its exercise must be reserved for exceptional circumstances, where the pre-requisite jurisdictional fact is established for its invocation.

"As a general principle, a minor-child in the custody of one of his natural guardians cannot, as a matter of course, be deemed to be in unlawful or illegal custody, absent a specific order to the contrary issued by a competent Court," it added.

"As a matter of general judicial principle, the writ Court ought to ordinarily exercise restraint and defer dispute(s) to statutory forums unless accentuating circumstances necessitate such intervention by High Court," the Court said.

The bench explained that, in all matters relating to the custody of minor child, the paramount consideration is the welfare of such child. "In exercise of its parens patriae jurisdiction; the High Court may, in appropriate cases, upon a holistic examination of facts, take an inquisitional role to ensure that the custodial arrangement serves the best interest of the child, superseding the adversarial claims of the parties."

Justice Goel highlighted that, "in cases involving a writ of Habeas Corpus concerning the custody of a minor - child, where the petition is filed by one parent against the other or against a relative, the paramount issue for judicial rumination is two fold: firstly, whether the minor-child's current custody is unlawful or illegal & secondly, whether the minor-child's welfare necessitates a change in existing custodial arrangement, thereby entrusting the child to the care & custody of another."

"The detention of a minor-child by a person, not legally entitled to the custody, is deemed equivalent to an illegal detention for the purpose of granting writ of Habeas Corpus as has been held by Hon'ble Supreme Court in case of Tejaswini Gaud (supra). Consequently, the unlawful or illegal nature of the minor-child's custody constitutes a jurisdictional pre- requisite for the exercise of Habeas Corpus writ jurisdiction," it added.

The bench elucidated that, Court's primary duty is to determine whether the child is being held without legal justification, as this foundational facet is what empowers the Court to intervene and issue this prerogative writ in the nature of Habeas Corpus, as has been held by the Supreme Court in Rajeswari Chandrasekar Ganesh versus State of Tamil Nadu & Ors., 2023.

In custody disputes pertaining to a minor-child, the conventional recourse is through the provisions of relevant guardianship statutes including the Hindu Minority and Guardianship Act, 1956; the Guardians and Wards Act, 1890 etc.

These legislative frameworks provide a comprehensive and structural process for the adjudication of custody matters involving thorough examination of evidence presented by the rival parties and adherence to established procedural norms as has been held by Supreme Court in cases of Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba versus The State of West Bengal & Ors, the judge said.

In the present case, the Court noted that the petitioner – mother has already instituted an application under the Guardians and Wards Act, for seeking custody of the child in question from respondent – father, in January 2025.

"No justification is coming forth, at the end of the petitioner as to why this Court ought to exercise its extra ordinary power under writ jurisdiction despite the petitioner having earlier filed an application (under the Guardians and Wards Act, 1890) for primarily the same relief," it added.

Consequently, the plea was dismissed.

 Mr. Chetan Goyal, Advocate for the petitioner.

Mr. Gurpartap Singh Bhullar, AAG Punjab.

Mr. Siddharth Gupta, Advocate for respondent No.4.

Title: Veerpal Kaur v. State of Punjab and others

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