A child of tender age needs maternal affection, nurture and care, the Punjab and Haryana High Court has said in ordering the custody of six-year-old girl, who had been with her father’s family since October 2025, to be handed back to her mother.
Chandigarh: On October 28, 2026, a six-and-a-half-year-old girl is to be brought before the Chief Judicial Magistrate, Gurdaspur, and given into her mother’s custody, the Punjab and Haryana High Court has directed. The child has been living with her husband’s family since October 2025, and the Court held that the mother is entitled to her custody [A v. State of Punjab and Others].
Justice Sumeet Goel decided the habeas corpus petition on October 15, 2026. It had been filed under Article 226 of the Constitution read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and asked for the child to be produced and for her custody to be returned by the mother’s in-laws. The child is not identified in this report.
Tender age and the welfare test
The proviso in the Hindu Minority and Guardianship Act under which custody of a child below five years ordinarily lies with the mother does not directly apply to a child of six and a half. The Court therefore rested its order on the child’s tender age and welfare. It held:
“The custody of a minor child, who is of tender age, should ordinarily rest with the mother as it is a well settled principle that children of such a tender age stand in need of maternal affection, nurture and care, which are indispensible for their holistic development.”
Justice Goel started from the Court’s earlier decision in Veerpal Kaur v. State of Punjab (2025:PHHC:113490), which draws on a line of Supreme Court rulings. Under it, a habeas corpus petition on a child’s custody ordinarily requires the custody to be demonstrably illegal, though the High Court may relax this in the child’s interest. The writ is not a substitute for the full procedure under the guardianship statutes, the child’s welfare is the paramount consideration, and the Court may act as parens patriae.
The separation, as the mother tells it
The couple married in December 2014 and their daughter was born in 2020. The husband went to Kuwait for work in 2017 and later settled there, while the mother stayed on at the matrimonial home with her in-laws. She alleged that in his absence a relative of the family sent her inappropriate messages, made unwanted advances and once attempted to molest her, and that her in-laws asked her to stay silent. These are her allegations. The respondents said the police inquiry found them false and unsubstantiated, and the Court did not treat them as established.
According to the petition, she left the matrimonial home with her daughter on October 4, 2025, and the in-laws snatched the child from her on the way, so that she reached her parental home alone. A police complaint led to no effective action, a panchayat called by her parents failed to get the child back, and mediation at the High Court’s Mediation and Conciliation Centre while the petition was pending did not succeed.
Arguments on both sides
Senior Advocate Vipin Mahajan, with Advocate Gaganbir Kaur, argued for the mother that the child was being denied motherly care at a crucial stage of growth and that the private respondents’ conduct violated the Hindu Minority and Guardianship Act, 1956, which gives the mother a preferential right to custody. Advocate Aman Sapiah, for the respondents, called the petition misconceived and the allegations false, exaggerated and an afterthought. He said the mother had left the matrimonial home voluntarily and that the grandparents were caring for the child properly, which could not be called illegal detention. Assistant Advocate General Adhiraj Singh Thind said the State was not a contesting party on the question of custody.
How the Court weighed it
A birth certificate on record, the Court noted, prima facie established the mother’s relationship with the child. The allegations about the private respondents’ conduct, though not treated as established, together with the circumstances in which the child was separated from her mother, raised a concern that “cannot be brushed aside at this stage.” Status alone does not settle such a dispute:
“A dispute with regard to custody of a minor child cannot be decided solely on the basis of the status of either parent or relative.”
Permanent custody, the Court said, calls for a more comprehensive assessment by the competent court, but an alternative remedy does not by itself bar the High Court’s extraordinary jurisdiction. The mother did not appear to suffer any economic deprivation, and the private respondents showed nothing to suggest that she could not take good care of the child. Custody, the Court concluded, “ought to be with the mother, for the nonce.”
Handing over on October 28
The mother and the private respondents must appear before the Chief Judicial Magistrate, Gurdaspur on October 28, 2026, where the respondents are to hand over the child. Should they not do so, the Magistrate is directed to take steps to hand custody to the mother, and the Senior Superintendent of Police, Gurdaspur is to give all assistance. Pending applications were disposed of.
A writ remedy, with the larger question left open
Where a young child has been separated from her mother by the in-laws, the order shows custody being restored in writ jurisdiction without waiting for a guardianship proceeding. It is expressly an arrangement “for the nonce”, and the question of permanent custody remains for the competent court, so the order does not decide the allegations either side has made.
Case Title: A v. State of Punjab and Others [CRWP-279-2026]
Bench: Justice Sumeet Goel, Punjab and Haryana High Court
Date of Order: October 15, 2026
Appearances: Senior Advocate Vipin Mahajan with Advocate Gaganbir Kaur for the petitioner; Assistant Advocate General Adhiraj Singh Thind for the State of Punjab; Advocate Aman Sapiah (for Advocate Anosh Samson) for respondent Nos. 6 to 10