CRWP/8461/2026 of BHAMY HARI SHENOY Vs STATE OF HARYANA AND OTHERS on 23 July 2026

1. The present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus directing the official respondents to secure the production of the daughter of the petitioner, namely, Baby Nisa Ahluwalia Shenoy, aged about 3 years and a citizen of the Republic of Ireland, who is stated to be illegally detained at Panchkula by respondent No.5 without any authority of law.

2. In compliance of the order passed by this Court on 16.07.2026, the alleged detenue has been produced in Court.

3. Since the child is about 03 years old, it seems necessary to consult a Child Counsellor to interact with the child. Accordingly, a Child Counsellor namely, Ms.Charupreet Kaur Lamba was called to interact with the child. After interaction with the child, the Child Counsellor, has submitted her report and the same is taken on record. As per the report of the Child Counsellor, the child appeared calm, healthy, composed and developmentally appropriate for her age. The child also showed a secure emotional attachment with her mother and is comfortable in the care and custody of her mother.

4. I have considered the submissions made by learned counsel for the parties and have gone through the case file.

5. This Court has noticed an increasing tendency amongst disgruntled parents and other family members to move a writ petition in the nature of habeas corpus, in order to settle custody of the children. A two Judge Bench of the Hon’ble Apex Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari’, 2019 AIR SC 2318, has observed as follows:- “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.

19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and 14 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.”

6. The issue before the Court is whether Habeas Corpus can be used as an alternative to a guardianship order when it comes to deciding custody of a child. Habeas Corpus is usually applied to secure the release of a person unlawfully detained, but it can also be used to ensure a child's safety and protection. However Habeas Corpus does not involve the detailed inquiry into welfare and best interest that is central to guardianship proceedings. Therefore, while Habeas Corpus can serve as a means of temporary custody, it does not replace the comprehensive process of guardianship under the relevant statute.

7. Considering the facts on record and the settled legal principles, this Court is of the opinion that though the availability of an alternative remedy is not an absolute bar to the issuance of a writ in the nature of Habeas Corpus, disputes between natural guardians are best examined by the Court of Guardians and Wards, which is vested with the jurisdiction and expertise to determine the welfare of the child and to provide both parties a full opportunity to present their claims and lead evidence. Moreover, the alleged detenue is in the custody of her biological mother which cannot be termed as illegal detention.

8. In the present case, no circumstance has been established that would warrant intervention by this Court through a writ of Habeas Corpus. Accordingly, the same is disposed of with liberty to the petitioner to avail alternative remedy available to him in accordance with law.

(H.S. GREWAL) JUDGE July 23, 2026 poonam

Whether speaking/reasoned : Yes/No

Whether reportable

: Yes/No