Rajbeer Kaur Vs State of Punjab and Ors.

Present: Mr. PPS Duggal, Advocate for the petitioner. Mr. Baljinder Singh Sra, Ad d l. A.G. Punjab. Mr. A.S. Manaise, Advocate for respondent No.2. None for respondent No.3.

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SUMEET GOEL, J.

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The petition in hand file d , under Articles 226/227 of the Constitut i on of India, is for issuance of an appropriate writ, order or direction to the respondents to produce t h e minor sons (hereinafter refer r ed to as ‘ ch i ldren in question’ ) before this C ourt and to grant their custod y to the petiti o ner, who is their mother, as t h ey are of tender age and req u ire mother’s care, affection and protection.

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Shorn of non-essential details, the relevant factual matrix of the lis in han d is adumbrated, thus:

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(i) The marriage of the petition e r was solemnized with respondent No.2 na m ely Lakhwinder Singh about th r ee years ago as per Sikh rites. O ut of the w edlock, two sons were bo r n i.e. Karandeep Singh (D O B: 22.01.20 2 2) and Sartaj Singh (DOB 01.0 3 .2023).

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(ii) After the birth of the second child, the petitioner has stated that MAHAVIR SINGH 2025.09.05 17:13I attest to the accuracy and she was s ubjected to persistent cruelty, h arassment and dowry demands by authenticity of this order/ judgment

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her husb a nd (respondent No.2 - herein ) and in-laws. Despite provid i ng additiona l articles and furniture items amounting to Rs.2,50,000/on 10.11.20 2 3 to maintain peace, the malt r eatment continued. The petitio n er alleged t hat she was ousted from h er matrimonial home but a f ter compromise, she was allowed to stay at h e r matrimonial home. (iii) It was alleged by the petiti o ner that she later discovered that responde n t No.2, was maintaining an i l licit relationship with respondent No.3. Th e reafter, her harassment intensi fi ed at the hands of her husband i.e. responde n t No.2 as also by her in-laws. On 22.11.2023, the petitioner w as physicall y assaulted, wrongfully confi n ed and prevented from seek i ng police a s sistance. On 23.11.2023, w h en the mother of the petitio n er intervene d , she too was beaten. Th e reafter, written complaints were submitte d to the police (copy whereof ha s been appended as Annexures P -1 to P-3), b u t to no effective avail. (iv) The petitioner has furthe r alleged that, despite and o ral assuranc e that the custody of the minor children would be restored to the petitione r , she was forcibly ousted from her matrimonial home during the night of 2 2/23.11.2023 and her children w ere wrongfully retained by pri v ate responde n ts. Since then, the petitioner h a s been denied access to her mi n or sons. T h ereafter, the petitioner made number of complaints before the police au t horities and women Cell (Cop i es whereof have been annexe d as Annexur e s P-4 & P-5 with the instant p e tition), no action have been ta k en. Owing t o the deliberate inaction by the police authorities, who are act i ng under th e influence of respondent No. 2 , the petitioner was left with no option bu t to approach this Court by way of the petition in hand.

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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(v) During the pendency of the present petition before this Co u rt, the partie s were referred to Mediation an d Conciliation Centre of this Co u rt, but the s a me did not fructify.

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It is in the above backdrop t h at the instant petition has come up for heari n g before this Court. 3. Learned counsel for the petitioner-mother has iterated that children i n question are of tender age and, at this stage of growth, they are in utmost need of the love, care and affection of their mother. However, the children i n question have been forcibly a n d unlawfully snatched away fr o m the petiti o ner thereby depriving them of the motherly care. Furthermore the conduct o f the private respondents amou n ts to a blatant violation of Sect i on 6 of the H indu Minority and Guardians h ip Act, 1956 which clearly gi v es preferent i al right to the mother for the c u stody of the minor children below the age o f five years. Learned counsel ha s further iterated that the petitio n ermother h a s sufficient economic resources available at her end and she h as never ev e r sought for any financial sup p ort from the respondent-husba n d. Accordin g to learned counsel, the forci b le deprivation of custody of the children i n question by the respondents i s illegal, arbitrary and contrar y to settled p r inciples of law. To buttress h i s arguments, learned counsel h as relied up o n the judgments of the Hon’ble Supreme Court titled as Ma n ju Tiwari v s . Dr. Rajendra Tiwari and an o ther, 1990 AIR (Supreme Co u rt) 1156; Ya s hita Sahu vs. State of Rajastha n & Ors. 2020(3) SCC 67; Vasu d ha Sethi & Ors. Vs. Kiran V. Bhaskar & Anr. 2022(2) RCR (Civil) 3 2; Rajeswar i Chandrasekar Ganesh vs. Sta t e of Tamil Nadu & Ors. 202 3 (1) PLR 755 ; Mansi vs. The State of Punj a b & Ors. passed in CRWP-73 3 2-

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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2022, de c ided on 07.11.2022 and Neha v s . State of Haryana & Ors., 202 0 (4) RCR(Civ i l) 643 . On the strength of these submissions, grant of petitio n in hand, is e n treated for.

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Per contra, learned counsel appearing for respondent No.2 h as submitte d that the present petition is misconceived and filed only to harass the respo n dent-father. The allegations l e velled by the petitioner are fa l se, exaggera t ed and afterthought which is ai m ed at maligning the reputatio n of the resp o ndent No.2 and his family. A ccording to learned counsel, the petitione r has voluntarily abandoned h e r matrimonial home on her own accord. F urthermore, the custody of th e children in question is with the responde n t No.2-father and his family w h ere they are being properly ca r ed for. Lea r ned counsel has further iterat e d that in the custody matters, the welfare of the children is the paramount c onsideration which, in the present case, req u ires that the custody remains w ith the respondent-father. Lear n ed counsel h as further submitted that the re s pondent-father has filed a petit i on under Se c tions 7, 8 and 17 of the Guardian and Wards Act, 1890 read w ith Section 13 of the Hindu Minority and G uardianship Act, 1956 (hereina f ter referred t o as ‘ Family Court petition ’) fo r appointment of respondent-fat h er (herein) a s guardian of the children in qu e stion . Learned counsel has arg u ed that sinc e the said petition is pending a djudication before the concer n ed Family C ourt, the present writ petition deserves to be dismissed on t his score alo n e. In order to buttress his a r guments, learned counsel for the responde n t-father has relied upon the j u dgments of the Hon’ble Supreme Court titl e d as Somprabha Rana & Ors. v s. The State of Madhya Prades h & Ors. 202 4 (9) SCC 382, Nirmala vs. K ulwant Singh & Ors., 2024 A IR

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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Supreme Court, 2344, Tejaswini Gaud a n d Ors. vs. Shekhar Jagdish Pra s ad Tewari a n d others, 2019(3) RCR (Civil) 1 04 and Sumedha Nagpal vs. S t ate of Delhi & Ors., 2000(9) SCC 745 . On t he basis of aforesaid submissi o ns, the dismi s sal of the instant petition is pra y ed for.

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4.1. State of Punjab is not actu a lly a contesting party in the li s in hand and learned State counsel has raised submission(s) accordingly. 4.2. Respondent No.3 was serve d . However, neither she has come present i n person nor any counsel has ap p eared on her behalf. 5. I have heard learned coun s el for the rival parties and h a ve perused t h e available record. 6. The seminal issue that aris e s for consideration in the present petition i s as to whether a writ ought to be granted, vesting the custod y of the child r en in question , in favour of the p etitioner-mother. 7. Before delving into the meri t s of the lis, it would be apposit e to refer her e in to a judgment passed by this Court in Veerpal Kaur vs. State of Punjab and others = 2025:PHHC:113490, wherein, after relying upon the judgment s of the Hon’ble Supreme Cou r t titled as Dr. Mrs. Veena Kap o or vs. Vari n der Kumar Kapoor, 1982 A IR Supreme Court 792; S y ed Saleemu d din vs. Dr. Rukhsana, 2001(2) R CR(Criminal) 591; Nithya An a nd Raghava n vs. State of NCT of Delhi & Anr., 2017(3) RCR (Civil) 7 9 8; Tejaswin i Gaud and Ors. vs. Shekhar J a gdish Prasad Tewari and oth e rs, 2017 (3) RCR (Civil) 104; Jose Antonio Zalba Diez Del Corral alias J o se Antonio Z alba vs. The State of West Be n gal & Ors., 2021 SCC Online SC 3434; Ra j eshwari Chandrasekar Ganes h vs. State of Tamil Nadu & O r s., 2023 (12 ) SCC 472; Nirmala vs. Kulwa n t Singh & Ors. 2024 AIR Supr e me

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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Court 23 4 4 and Gautam Kumar Das Vs. NCT of Delhi and others, 202 4 (4) RCR (Ci v il) 98 and Somprabha Rana & Ors. vs. The State of Mad h ya Pradesh & Ors. 2024 (9) SCC 382 , has h e ld as under:

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“16. As a sequitur to the above rumination, the following postul a tes emerge:

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I. The High Court’s jurisdi c tion to issue a writ of Habeas Corpu s in minor child custody matter is pr e dicated on the basic jurisdictional fa ct, namely, the minor child’s custo d y is demonstrably illegal/unlawful. In appropriate cases, the High Court may relax this jurisdicti o nal prerequisite, in the interest of we lf are of minor child. II. The writ of Habeas C orpus is not a substitute for the comprehensive and evidence based procedures available u n der applicable guardianship statu t es (such as Hindu Minority a nd Guardianship Act, 1956; Guar d ians and Wards Act, 1890 etc.). A s a matter of general judicial princ i ple, the writ Court ought to ordin a rily exercise restraint and defer d ispute(s) to statutory forums un l ess accentuating circumstances nece s sitate such intervention by High Cou r t III. In all matters relating to the custody of minor child, the paramount consideration is the w elfare of such child. In exercise o f its parens patriae jurisdiction; the High Court may, in appropriate ca s es, upon a holistic examination of f a cts, take an inquisitional role to en s ure that the custodial arrangement serves the best interest of the c h ild, superseding the adversarial clai m s of the parties. IV. In furtherance of a minor child’s welfare, the writ Court may i s sue interim order(s) concerning cu s tody and other incidental aspects as warranted by exigencies of the s i tuation, ensuring that the minor chi l d’s well being remains the ultimate d eterminant of justice and thereafter r e fer parties to remedy(s) before statutory forum(s) for final/fur t her determination of the lis.

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V. The High Court, in its w r it jurisdiction has unbridled, unfett e red and plenary powers. No infle x ible and comprehensive guidelines can conceivably be enumerated go v erning the exercise of these intri n sic powers. There is no gainsaying t hat the nature, mode and extent of such exercise of this jurisdiction by the High Court shall depend upon the judicial discretion exercised by the High Court in the facts a nd circumstances of a given case.”

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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This Court does not deem i t appropriate to burden the present judgment with any further case law.

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Indubitably, in custody mat t ers pertaining to minor child, the paramou n t consideration for Court i s welfare of minor child. T he legislatur e , in its wisdom has, under Se c tion 6 of the Hindu Minority a nd Guardian s hip Act, 1956, explicitly reco g nized that the custody of a mi n or child wh o has not completed the age of fi ve years, shall ordinarily rest w ith the moth e r. The statutory mandate is n o t an arbitrary classification, b u t a recogniti o n of settled principles that children of such a tender age stan d in need of m aternal affection, nurture and care, which are indispensible for their holi s tic development. It is not in di s pute that the minor sons, born o ut of the w e dlock of the petitioner-mother and respondent No.2-father, were born on 2 2.01.2022 and 01.03.2023 resp e ctively. The petition in hand w as filed in J a nuary, 2024. Hence, at the ti m e of filing of the petition in ha n d , the child r en in question were aged abou t 01 year, 11 months & 10 mo n ths respectiv e ly. At the time of disposal of the petition in hand, they are a g ed about 03 years, 07 months & 02 years , 06 months. As per the statut o ry mandate e nunciated in Section 6 of the Hindu Minority and Guardians h ip Act, 195 6 , the custody of a minor, wh o has not completed the age of 05 years, or d inarily ought to be with the m other. From the material brou g ht forth, th e petitioner-mother does not a ppear to be suffering from a ny economi c deprivation. The respondent- f ather is shown to be a trucker by professio n . Further, another plank of the ground undertaken by the responde n t-father for declining of the i n stant petition is the factum of his having fi l ed the Family Court petition w hich was filed in May, 2025 i.e.

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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much aft e r the filing of the petition in ha n d which was instituted in Janu a ry, 2024. T h e respondent-father, thus, cann o t be permitted to have any ben e fit of the sa i d petition being pending adjud i cation. Indubitably, the welfar e of the child r en in question is the paramoun t consideration for delving into the issue of their custody which in presen t case is in favour of petitio n ermother. F rom the totality of the factual m i lieu of the case in hand; especi a lly in view o f the children in question bei n g less than 05 years of age, the petitione r -mother not being suffering from any economic deprivation, nothing h aving brought forth at the en d of the respondent-father that the petitione r -mother will not be able to t a ke good care of the children in question a s also the Family Court petiti o n having been filed in May, 2 0 25 vis-à-vis t he petition in hand having be e n instituted in January, 2024; t his Court de e ms it appropriate that custody o f children in question ought to be with the m other, for the nonce.

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In view of the prevenient r a tiocination, the petition in han d is

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disposed o ff in the following terms:

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(i) The petitioner-mother is hel d entitled to custody of the child r en in questi o n subject to adjudication of th e issue of interim/final custody by the conc e rned Family Court at Pathan k ot in the Family Court petit i on pending a djudication before it.

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(ii) The petitioner-mother and t he respondent-father shall appear before th e concerned Family Court at Pa t hankot on 15.09.2025 wherein the responde n t-father shall hand-over the custody of the minor children to the petitione r -mother. In case the respon d ent-father does not do so, the concerne d Family Court, Pathankot is d irected to take steps for handi n g-

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

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over the c ustody of the children in questi o n to the petitioner-mother. Se n ior Superintendent of Police, Pathankot is di r ected to render all assistance to the said Fam i ly Court in this regard.

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(iii) The above arrangement sh a ll be interim in nature & wo u ld continue till a decision is taken by the c oncerned Family Court regard i ng interim c u stody of the children in ques t ion. Parties are at liberty to r a ise their resp e ctive plea(s) before the said Fa m ily Court in this regard. Needless to say th a t the said Family Court shall t ake a decision thereupon with o ut being in f luenced by any observation m ade by this Court in the instant judgment. (iv) Pending application(s), if an y , shall also stand disposed off.

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(SUMEET GOEL) JUDGE

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Septemb e r 05, 2025 Ajay/mahavi r

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Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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MAHAVIR SINGH 2025.09.05 17:13 I attest to the accuracy and authenticity of this order/ judgment

Rajbeer Kaur v. State of Punjab and Ors.

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Rajbeer Kaur v. State of Punjab and Ors.

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