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VIKRAM AGGARWAL, J. –

The present petition has been filed under Article 226 of the Constitution of India, praying for the issuance of a writ in the nature of habeas corpus for the production and release of the detenue (Alisha), who is the minor daughter of the petitioners, from the illegal and unlawful custody of respondents No.4 and 5.

2. Normally, one would come across issues as regards custody of minor children amongst the parents of such a child or with one parent on one side and some relative on the other. This time, however, the issue is between natural parents on the one side and the paternal aunt (Poonam) and her husband (Prince Sharma) on the other.

2.1 The facts, as emanating from the petition, are that the marriage of the petitioners was solemnized on 18.12.2019 at Sirsa. From the wedlock, one daughter namely Alisha was born on 25.11.2021. The birth certificate and Aadhaar Card of the minor child have been placed on record as Annexures P-1 and P-2. Annexure P-1 states the names of the petitioners as parents. The Aadhaar Card gives the name of petitioner No.2 as the father of the detenue.

2.2 It is the case of the petitioners that at the time of solemnization of the marriage of the petitioners, petitioner No.2 was living in a joint family consisting of his father, elder brother and sister-in-law, their children and younger brother. At that time, respondent No.4, who is the paternal aunt of the detenue was residing at Village Jandli, Ambala City in her matrimonial home with her husband (respondent No.5).

2.3 Petitioner No.1 applied for a study visa for Canada and got admission in Salt College, Brampton Campus, in a Global Business Management Course. She, accordingly, left for Canada on 07.12.2023 with the aim of securing a bright future for her minor daughter and her family. Upon reaching there, documents were processed for her husband and minor daughter to come to Canada. However, on account of certain complications, visa was not granted to the minor child whereas petitioner No.2 left for Canada on 07.02.2024. The minor child was, therefore, left in the joint family as a temporary arrangement.

2.4 The elder brother of the petitioner was detected with stage 3 cancer of the mouth and was accordingly referred to AIIMS, Bathinda and the entire family got busy in his treatment as a result of which, the minor child was sent to respondent No.4.

2.5 The petitioners were blessed with a baby boy in Canada. Subsequently, the documentation of the minor child (detenue) was also completed and when the petitioners told respondents No.4 and 5 about the same, they stated that they would be handed over to the parents whenever they came to India.

2.6 In January 2025, the documents of the minor child were processed and she was granted Canadian Visa w.e.f. 21.01.2025 to 10.10.2028 and a recommended consent letter was also issued. The said documents have been placed on record as Annexures P-4 and P-5.

2.7 Petitioner No.1 was also granted work permit in Canada w.e.f. 23.04.2026 to 23.04.2029 and similarly petitioner No.2 also got a work permit from 02.07.2026 to 23.04.2029. Accordingly, the petitioners came back to India to take their minor daughter along with them and here is where the trouble started. To their shock and dismay, respondents No.4 and 5 refused to hand over the custody of the minor child. Under the circumstances, the present petition was instituted.

3. The petition has been opposed by way of a reply in which, the basic stand taken by the respondents is that since petitioners wanted to go to Canada for their future, they had orally given the minor child in adoption to them. It is the case of respondents No.4 and 5 that the minor child is studying in a school and her identity card has been placed on record as Annexure R-4/3 mentioning her to be the daughter of respondent No.5. It is the case of respondents No.4 and 5 that the petitioners had stated that the documents as regards adoption would be executed whenever they would return from Canada but now they have started claiming the custody of the child since children are funded by the Canadian Government. It is also the case of respondents No.4 and 5 that they have instituted a suit (Annexure R-4/1) in the Civil Courts at Ambala seeking a declaration as regards the custody of the minor child. It is the case of respondents No.4 and 5 that petitioners have caused appearance in the said suit also but while filing the present petition, they have not disclosed the same. Accordingly, dismissal of the petition has been prayed for.

4. Learned counsel for the parties were heard.

5. It was strenuously urged by learned counsel for the petitioners that the petitioners, being natural parents, should be given the custody of the minor child and there is absolutely no reason for respondents No.4 and 5 to deny the same. Reliance was placed upon a judgment of the Apex Court in the case of Vivek Kumar Chaturvedi and another v. State of U.P. & Ors (SLP(Crl) No.14809/2024, decided on 07.02.2025).

6. Per contra, learned counsel for respondents No.4 and 5 submitted that the custody of the child should remain with them. In support of his contentions, learned counsel placed reliance upon the judgment of a coordinate Bench in the case of Sonia Dhawan v. State of Haryana and others (CRWP-1057-2019, decided on 19.06.2020) = (2020) Law Today Live Doc. Id. 15205. Learned counsel submitted that a writ of habeas corpus is not maintainable and the rights shall be determined in the civil suit instituted by them.

7. I have considered the submissions made by learned counsel for the parties and have perused the case file.

8. Before adverting to the merits of the case, it would be apposite to refer to the law on the subject.

9. Coming first to the maintainability of a habeas corpus petition, it is no longer res integra that such a petition is maintainable. Reference can be made to the judgments of the Apex Court in the cases of Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others, 2019 AIR SC 2318 and Yashita Sahu v. State of Rajasthan and others, 2020 AIR SC 577.

10. A coordinate Bench of this Court had also examined the entire issue in detail in the case of Sonia Dhawan (supra) wherein it was also reiterated that a writ of habeas corpus for the custody of a minor child is very well maintainable, where there was a wrongful deprivation of the same. Reliance in this judgment was also placed, apart from a host of other judgments, on the judgments in the cases of Tejaswini Gaud (supra) and Yashita Sahu (supra). Under the circumstances, it is held that the present petition is very well maintainable.

11. It is also well settled that it is the welfare of the child, which is the paramount consideration in custody cases. However, that would be so more where one parent is pitted against the other. Here the natural parents are pitted against the sister of petitioner No.2 and her husband. It is also well settled that in such cases, the natural parents would have a preferential right of custody. Not only the law but common sense also says so.

12. It needs to be clarified that since the petition has been filed by the natural parents, this Court did not interact with the child to know her wish because she has been living with the paternal aunt and her husband for the last three years now and it would not have been in the interest of the child to ask her as to whom she wants to live with.

13. Reverting to the facts of the case, concededly, the petitioners are the natural parents of the minor child. Concededly, they left for Canada in December 2023 and February 2024 respectively, one after the other. In such circumstances, it would be very normal for any parents to leave the child behind in the joint family in case of some problem in the immigration process. It would also further be very natural to hand over the custody to paternal aunt in case of some problem in the joint family, which in the present case, was detection of cancer to the elder brother of petitioner No.2. The argument that it was a case of an oral adoption is not acceptable and that too at this stage. Disputed questions can never be decided in a writ petition. A suit has been instituted and these issues shall be decided in said suit.

14. For the present, the custody of the minor child with respondents No.4 and 5 is clearly unlawful, especially when the natural parents are claiming the same. They have processed the immigration documents of the minor child. Visa has been granted to her. The consent of the Canadian Government for the child to travel to Canada is there. Under the circumstances, there would absolutely be no reason for respondents No.4 and 5 to hold on to the custody of the minor child. This act of theirs is wholly illegal and unlawful.

15. That being so, the present petition is allowed. Respondents No.4 and 5 are directed to handover the custody of the minor child to the petitioners forthwith but not later than one week, in any case, from the date of receipt of a certified copy of this order. A further direction is issued to respondents No.4 and 5 to handover all belongings of the minor child including essential documents which they may be in their possession to the petitioners within the aforesaid period.

16. In case of non-compliance of the aforesaid directions, the Superintendent of Police, Ambala shall render the requisite support/assistance to ensure the implementation of this order. It shall also be ensured that the custody of the minor child is restored to the petitioners strictly in accordance with law, while ensuring that the transition is carried out with due sensitivity and without causing any avoidable trauma to the child.

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

Order accordingly.

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