The Punjab and Haryana High Court, presided over by Justice Shalini Singh Nagpal, has ruled that in custody disputes concerning very young children, welfare considerations and statutory mandates place custody ordinarily with the mother. Addressing a habeas corpus petition filed by a working mother against her estranged husband, the High Court held that the availability of alternative statutory remedies does not bar writ jurisdiction when the paramount welfare of a minor is at stake. Consequently, the bench allowed the petition and directed the father to hand over the 2.5-year-old girl child to the petitioner.
The petitioner married respondent No. 4 on July 8, 2022, according to Sikh rites and ceremonies. It was the second marriage for both parties. The petitioner, employed since 2013 as a Senior Assistant at Punjab University, maintained that within months of marriage, respondent No. 4 and his family began ill-treating and harassing her for dowry, demanding that her monthly salary be transferred directly into his account. She also alleged regular physical assault, neglect during her pregnancy, and ongoing threats. The petitioner left the matrimonial home on September 12, 2025, to reside at her parental home. According to the petitioner, on April 20, 2026, respondent No. 4 took away their minor daughter, Gurnaaz Kaur, from her parental home on the pretext of returning her by evening, but subsequently refused to return her and demanded between Rs 15 lakh and Rs 20 lakh. Facing continuous threats and citing the criminal history of the respondents, she approached the High Court seeking a writ of habeas corpus.
In their reply, respondents No. 4 to 8 contended that the petition was an abuse of the court’s extraordinary jurisdiction under Article 226 of the Constitution of India. They asserted that as the biological father and natural guardian, respondent No. 4’s custody could not be termed illegal or unlawful, making the petition for habeas corpus non-maintainable. They argued that the proper remedy for the petitioner was to initiate custody proceedings under the Guardians and Wards Act, 1890. The respondents further alleged that the petitioner deserted the matrimonial home without sufficient cause, failed to perform matrimonial obligations, and concealed a pre-marital psychiatric ailment. They claimed the child was living happily in a joint family environment and attending school, whereas the petitioner’s full-time employment prevented her from devoting adequate time to child care.
Examining the preliminary issue of maintainability, the High Court observed that while habeas corpus proceedings typically require illegal detention, custody disputes involving minors focus primarily on the welfare of the child rather than the formal legality of detention. Citing the Supreme Court’s ruling in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019), the court highlighted:
“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 proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”
The High Court also referred to Supreme Court decisions in Yashita Sahu v. State of Rajasthan and others (2020) and Suryakanth M. Raikar v. The State of Karnataka and others (2026), reaffirming that the existence of statutory remedies under personal law or guardianship legislation does not foreclose writ relief when a child’s best interests require intervention.
Addressing the merits, Justice Nagpal observed that a writ court must refrain from rendering findings on disputed allegations of matrimonial cruelty and instead focus squarely on the welfare of the infant. The bench invoked Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed the age of five years shall ordinarily remain with the mother. Referencing the Allahabad High Court decision in Master Atharva (minor) and another v. State of U.P. (2020), the court emphasized that children under five years must remain with their mothers as a matter of rule, with exceptions restricted to circumstances where the mother leads an immoral life, has remarried into an unaccommodating home, or stands convicted of a heinous offense.
The court found no exceptional grounds to deny custody to the mother. It rejected the respondent’s claim regarding psychiatric illness due to lack of evidence, noting the mother’s stable 13-year career as a regular employee at Punjab University. Conversely, respondent No. 4 failed to provide details of his education, employment, or income, leading the court to draw an adverse inference. Emphasizing the natural necessity of maternal care during infancy, the High Court observed:
“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 cruel than to deprive an infant of her mother’s care, love and affection.”
Holding that the welfare of the child would be best served in the mother’s care, the High Court allowed the petition and issued the following directions:
- Respondent No. 4 must hand over custody of the minor child to the petitioner on September 22, 2026, between 10:00 AM and 11:00 AM at the petitioner’s parental home.
- In the event of default, the Senior Superintendent of Police, SAS Nagar Mohali, and the Station House Officer (respondents No. 2 and 3) must immediately secure and deliver custody of the child to the petitioner.
- Respondent No. 4 is at liberty to initiate statutory custody proceedings before the competent Guardian or Family Court, which shall decide the dispute independently without being influenced by observations in this writ order.
- Pending any regular custody proceedings, respondent No. 4 is granted visitation rights to meet the child every Sunday for two hours between 10:00 AM and 5:00 PM, or to make weekly video calls of 15 to 30 minutes between 5:00 PM and 6:00 PM, upon prior notice.
- Respondents No. 2 and 3 must provide requisite protection to the petitioner and the minor child against potential harm from respondents No. 4 and 5.
Case Title: Harjeet Kaur v. State of Punjab and others
Case No.: CRWP No. 7195 of 2026 (O&M)
Bench: Justice Shalini Singh Nagpal
Date: September 10, 2026
