Child's Welfare Overrides Mother's Preferential Custody Right: P&H High Court Rejects Habeas Corpus Plea For 2-Year-Old Staying With Father

The Punjab and Haryana High Court has dismissed a mother's habeas corpus petition seeking the return of her two-and-a-half-year-old daughter from the child's father. The Court held that although custody of a child under five should ordinarily be with the mother, the child's welfare is the paramount consideration.

It said the competing claims should be decided by the guardianship court, where the father had already filed a case.

Justice Shalini Singh Nagpal observed, “Though, custody of a minor, who is less than five years of age should ordinarily be with the mother, the paramount consideration before the Court is the welfare of the minor. The child's comfort, contentment, safety, health, education, physical and intellectual development etc. have to given due consideration. The parties' legal rights cannot be allowed to override the child's welfare.”

The parties married in February 2023, and their daughter was born in April 2024. In June 2025, the family, including the husband's parents, moved to Bengaluru, where the husband was working.

On May 22, 2026, after marital disputes, the wife flew with the child to her parents' home in Barnala. On August 19, 2026, the husband went to her parents' home and took the child away. The next day, an FIR was registered against him at Police Station City Barnala under Sections 333, 115(2) and 351(2) of the Bharatiya Nyaya Sanhita, 2023, on a complaint by the wife's brother. The child has since been living with the father and his parents in Bengaluru.

The mother argued that the child, being of tender years, was completely dependent on her for care, nourishment and emotional well-being. She relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, Nithya Anand Raghavan v. State (NCT of Delhi), Yashita Sahu v. State of Rajasthan and other decisions to argue that custody of a child under five should ordinarily be with the mother.

The father contended that as a natural guardian, his custody of the child could not be called illegal. The mother had neglected the child, who had lost weight and had dental decay. The child was now healthy and well cared for with him and his parents.

He had already filed a petition under the Guardians and Wards Act, 1890 before the Family Court at Bengaluru, listed for November 2, 2026. Writ jurisdiction should therefore not be invoked.

He also made serious allegations about the mother's health and conduct.

At the outset, the Court said that “the writ Court must refrain from recording any findings on the allegations and counter-allegations levelled by them against each other.”

Relying on Yashita Sahu Vs. State of Rajashtan and others 2020, the Court held that a habeas corpus petition by one parent against the other for custody of a minor is maintainable, and that an alternative remedy under guardianship law does not bar it. It explained:

“Thus, the position of law is that though ordinarily, basis for issuance of a Writ of Habeas Corpus is illegal detention, in the case of a writ in respect of detention of a child, the law is concerned not so much with the illegality of detention as with the welfare of the child.”

The Court noted that the child was too young to express a preference, and cautioned against moving her between parents:

“A child of tender years requires the love, affection, company and protection of both parents. The parents here are at logger heads. The child is not an inanimate object which can shuffled from one parent to another. Every separation, every re-union may have traumatic and psychosomatic impact on the child. Therefore, it is imperative that the Court weighs each and every circumstance very carefully before deciding the question of custody of a child.”

The Court referred to the medical records produced by the father, which included, a check-up from May 2026, when both parents were together, at which the child was prescribed supplements for wasting, a dental report from August 2026 recording caries in eight teeth and medical records relating to the mother.

The Court held that, in these circumstances, “detailed enquiry is necessitated by the competent Court, which cannot be substituted by exercise of extraordinary writ jurisdiction, where proceedings are summary in nature.”

It added further , “In the facts and circumstances of the case the court is of the view that it is not a case of exceptional character where the Court needs to exercise jurisdiction under Article 226 of the Constitution of India. Since recourse has been made by respondent No.4 to appropriate and effective remedy, this Court must exercise restraint particularly when it is not shown to the satisfaction of this Court that custody of the minor child with her father is to the detriment of the child and against the child's welfare.”

 Mr. Amit Dhawan, Advocate for the petitioner.

Mr. Akash Yadav, AAG, Punjab.

Mr. Anmol Partap Singh Mann, Advocate and Mr. Navjot Singh Sidhu, Advocate, for respondent No.4.