The Supreme Court while adjudicating an appeal filed against the final judgment and order of the Punjab and Haryana High Court, wherein the High Court vide the impugned judgment had allowed the petition filed under Article 226/227 of the Constitution of India, filed by the father of the detenu/minor child (respondent No. 1 before the SC) and directed the maternal grandmother (appellant before SC)to hand over the custody of the minor child to respondent-father observed that habeas corpus is a prerogative writ which is an extraordinary remedy, and recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective. 

The court after considering the pleadings and submissions made by the parties observed that “In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be”. The court further observed “There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature- 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- When a detailed enquiry including the welfare of the minor child and his preference is involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890”.

Observing that the High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India since a detailed enquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890, the Court held, “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”.The court, as such, held that High Court was not justified in entertaining the petition under Article 226 of the Constitution of India and the impugned judgment was quashed and set aside and the writ petition filed by the respondent father was dismissed.