Recently, the Punjab and Haryana High Court stated that,"There is a presumption that the welfare of a child of such tender age should be in the custody of the mother, but that presumption is rebuttable, which means the father has to disclose cogent reasons that the welfare of the child is jeopardized if the custody is retained by the mother".
The HC Bench ordered the release of a 3-year-old child from the father’s custody in a habeas corpus petition filed by the mother.
Brief Facts
The Petitioner's mother filed a habeas corpus writ for the release of her minor son, aged 2.5 years, from the alleged illegal custody of Respondents No. 4 to 7. The Petitioner was a resident of Ambala and had married Respondent No. 4 on November 18, 2015. A child was born to both of them on February 26, 2022. Later, Petitioner accused Respondent No. 4 and his family of harassing her and eventually taking away her child from her custody on June 26, 2024, after an altercation regarding the impending legal disputes relating to domestic violence and maintenance claims.
Issue
Whether the writ of habeas corpus should be allowed and the petitioner be granted the custody of the minor child?
Contentions of Petitioner
The Petitioner asserted that as per Section 6 of the Hindu Minority and Guardianship Act, 1956 (Hereinafter, ‘HMGA’), the custody of a minor below the age of 5 years should as a general rule be with the mother. She further claimed that Respondents No. 4 to 7 had unlawfully taken her child from her custody and was thus, illegally held by them. In lieu of the above, the petitioner filed a complaint with the police alleging that the illegal custody of her son which was also supported by CCTV images and in consequence, an FIR was lodged on June 26, 2024.
Contentions of Respondent
Per contra, Respondent No. 4 admitted to being the father and legal guardian of the child in question. He further submitted that as his father, he had been adequately taking care of the child. Respondent argued that the Petitioner was involved in extramarital affairs, which ultimately acted as the focal cause for the marital discord and her leaving the child in his care. The Respondent also claimed that he already provided for the child’s needs and that the present petition was a mere abuse of process. Other Respondents supported the plea of Respondent No. 4, that the present petition was a mere abuse of process by the Petitioner.
Observation by court
The court appraised the applicability of the habeas corpus writ and observed that such a relief is generally appropriate for securing the release of a minor child from confinement or illegal detention. The court remarked that though ordinary custody cases normally fall under the scope of HMGA or Guardians and Wards Act, however, extra-ordinary circumstances might require intervention via a writ. The court stipulated that since the age of the child was below 5 years, thus there was a rebuttable presumption in favour of the maternal custody, which could only be rebutted by evidence showing that the child’s welfare would be compromised.
Regarding the above, the court observed “The law is well settled that a remedy of the writ petition in the nature of habeas corpus is available when the minor is illegally and improperly detained” … “A mother’s love is the very definition of sacrifice and dedication. At the age of 2 ½ years, the bondage between child and mother is more than bondage with the father. Although feelings of father towards his child are always strong but those cannot be more than the feelings of a mother at this tender age. A child who does not get mother’s love may be unaffectionate and uncaring in his life. For becoming healthy citizen, it is necessary that one must have love for family, for humanity and also for his friends which is only possible if child at tender age gets love of mother. At such a tender age, there is no substitute for mother’s love.”
The HC Bench also observed, “The above said section provides that the custody of a minor who has not completed the age of 5 years, shall ordinarily be with the mother. Thus, there is a presumption that the welfare of a child of such tender age should be in the custody of the mother, but that presumption is rebuttable, which means the father has to disclose cogent reasons that the welfare of the child is jeopardized if the custody is retained by the mother.”
In addition to the above, the court observed, “This fact is clearly established that child, 2 ½ years old, was in the custody of the petitioner-mother and the child was illegally taken away and immediately thereafter was found in the custody of respondent No.4-father. Since there was no order passed by any court for handing over the custody of the child to the father, so custody of the minor child at this tender age by the father cannot be considered as legal.”
Decision
The court after considering the contentions from both the sides ordered the release of the child from custody of Respondent 4 -7 and further directed his custody to be transferred to be petitioner.
Case Title: Anju Sharma v. State of Haryana
Citation: 2024:PHHC:106868
Court: Punjab & Haryana High Court
Coram: Justice Gurbir Singh
Date: August 27, 2024
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