High Court of Punjab and HaryanaCRWP/4717/2025dismissed

Jaspreet Singh v. State Of Punjab And Others

2026-04-10Mr. Justice Yashvir Singh Rathor9 pages

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that his marriage was solemnized with one Rajbir Kaur and two children namely Divleen Kaur and Samrathjot Singh were born out of said wedlock. However, the relations between him and his wife were not cordial and on 11.09.2024, petitioner as well as Rajbir Kaur consumed some poisonous substance due to which both of them were hospitalized in DMC Hospital, Ludhiana. However, during treatment, Rajbir Kaur died on 13.09.2024. Thereafter, FIR No.152 dated 14.09.2024 was registered under Section 108, 3(5) of BNS, 2023, Police Station Basti Bawa Khel, Jalandhar against the petitioner as well as his sister Harkirtan Kaur for abetment of suicide by Rajbir Kaur and the petitioner was arrested. In the meanwhile, respondent No.4-who is sister of Rajbir Kaur, took over the custody of his children. Petitioner was released on bail vide order 11.12.

2024 passed by the learned Additional Sessions Judge, Jalandhar. Thereafter, he approached respondent No.4 to hand over the custody of his children to him but respondent No.4 refused to hand over the custody of the children. It is further submitted that the act of respondent No.4 is illegal and in gross violation of the fundamental rights of the petitioner and the children and respondent No.4 is not the lawful guardian of the children under any law. The custody of both detenues has been forcibly taken away from the biological father, which is illegal. It is further submitted that petitioner is the natural guardian of the minor children under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 1956 Act) and respondent No.

4 has no legal authority or right over the minor children and she has wrongfully confined his minor children with herself.

& Government job and is fit to take care of the children. It is further submitted that respondent No.4-

has filed one case No.GW-12-2025 under the Guardians and Wards Act, 1890 before District Court Kapurthala for appointing her as legal guardian of the minor children and for restraining the petitioner from obtaining the custody of the minor children.

By way of present petition, it has been prayed that present petition be allowed and respondent No.4 be directed to immediately release the detenues/minor children from her illegal and unlawful detention and their custody be handed over to him. 4.

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under the Guardians and Wards Act, 1890 before Family Court Kapurthala. Since the aforesaid case is already subjudice before Family Court, Kapurthala, the petitioner is at liberty to raise the pleas in the present petition before that forum. Therefore, no interference is called for by the police at this stage.

The parties have been heard and material placed on the file has been perused.

Learned counsel for petitioner argued that petitioner is the natural guardian of the minor children being their father under Section 6 of 1956 Act. He is an educated person and is a government employee. His financial condition is sound and he is in a better position to look after the minor children. He can shape the career of the minor children in a better

manner. Respondent No.4, who is the sister of petitioner's wife has taken the custody of the minor children illegally and she is not entitled to keep them in her custody and as such, the custody of minor children be handed over to the petitioner. In support of his contentions, learned counsel has relied upon 2019 (3) RCR (Civil) 104, Tejaswini Gaud Vs. Shekhar Jagdish Prashad Tewari and 2024 (4) RCR (Civil) 98, Gautam Kumar Das and NCT of Delhi and others.

On the other hand, learned counsel for respondent No.4 argued that petitioner was married with the sister of respondent No.1 and both the children were born out of their wedlock. He was not having cordial relations with his wife and on 11.09.2024, petitioner as well as his wife Rajbir Kaur consumed some poisonous substance, as a result of which, they both were hospitalized. Petitioner luckily survived but his wife unfortunately died and thereafter, one FIR has been registered against the petitioner under Section 108 and 3(5) BNS, 2023 for abetment of suicide by his wife and he was arrested. In his absence, both the minor children were taken care of by respondent No.4, who is their aunt/Mausi.

Petitioner is facing trial for abetting the suicide by his wife, who is mother of the minor children and he certainly has suicidal tendencies and the custody of the minor children should not be handed over to him, who are being looked after very well by respondent No.4. Learned counsel next contended that a petition for guardianship has already been instituted before the Family Court which will decide the rival contentions of both the parties and the custody of minor should not be handed over to the father under Writ of Habeas Corpus.

held as to whom custody of minor children should be handed over and this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in view of the peculiar facts and circumstances of the present case and learned counsel prayed that the petition in hand be dismissed.

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Tejaswini Gaud's case (supra), while deciding whether writ petition is maintainable or not has held that ordinarily remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be. It is only in exceptional cases that the rights of the parties seeking the custody of minor can be determined in exercise of extraordinary jurisdiction in a petition for habeas corpus. Relevant extract from the said judgment is reproduced 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

4 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.

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 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 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."

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14.

As a result of aforesaid discussion, the petition in hand is dismissed.

15.

Pending misc. application(s), if any, also stand disposed of.

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