“Welfare of Child is of Paramount Importance” HC grants Custody to Mother [Read Judgment]

Madhya Pradesh high court granted the custody to the mother in a habeas corpus petition after considering the welfare of the child, mother’s contention, and statutory provisions.

Facts

The petitioner and respondent no.6 had some matrimonial dispute among them relating to the alleged abuse and harassment of the petitioner over dowry which led to an altercation between them and resulted in the respondent retaining their child and the petitioner leaving to her parental house. On 30/06/2020 the petitioner asked for the corpus from the respondent, to which the respondent refuses and beat the petitioner along with her other family members.

Arguments

The petitioner’s side contended that the child was of 15 months and respondent no.7 and 8 the grandparents of the corpus were senior citizens and were not equipped to take proper care of the minor child. While the respondent argued that the writ petition was not maintainable since the issue was to be adjudicated in a civil court under the Hindu minority and guardianship act, 1956 r/w guardians and wards act, 1890. the respondents also questioned the mental state of the petitioner to which the petitioner replied with enough evidence.

 Court's Decision

The court referred to the supreme court case of 1981 Capt. Dushyant Somal Vs. Sushma Somal(1981)2 SCC 277 for the issue of maintainability, the SC held that the writ of habeas corpus was maintainable in case of custody if the parent was unlawfully deprived form the child and the petitioner can file the writ petition even if they have other remedies in civil court, the same was upheld by the Madhya Pradesh high court. Court further relied on similar cases such as  Veena Agrawal Vs. Shri Prahalad Das Agrawal AIR (MP) 1976 92 and Kamla Devi Vs. State AIR (HP) 1987 34 where mothers were granted custody in case of habeas corpus petition with regard to section 6 of the Hindu minority and guardianship act,1956 which says that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.

The court reached the verdict that the custody was to be given to the mother saying, “Court is of the opinion that the welfare of a child is of paramount importance and the mother/petitioner, who has nurtured the child for nine months in the womb, is certainly entitled to custody of the child keeping in view the statutory provisions governing the field.” the court found the petitioner and the parents of the petitioner with whom she was living in satisfactory condition for the maintenance of the child and the petitioners and ordered the respondents 6 to 8 to hand over the child’s custody to the petitioner.

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