While dealing with the case of Poonam Kalsi v. State Of Punjab And Others, Punjab and Haryana High Court has held that the custody of the father as a natural guardian cannot be said to be illegal or unlawful and therefore, it would not be appropriate to issue a writ of habeas corpus in favour of the petitioner.
The facts of the case are that marriage between the parties took place in 2014 and 2 children were born out of this wedlock. Due to marital discord, they started living separately. The elder child was living with the mother while the younger child was living with the father. The petitioner (wife) averred that her minor son (aged 3 years) was illegally taken out of her custody by her husband and his family members.
She also alleged that her husband and in-laws were habitual offenders with more than 198 FIRs registered against them under the NDPS Act. She also alleged that she made a complaint before the Police but to no avail.
At the very outset, the Court decided on the matter of maintainability of the petition and held the writ of habeas corpus for custody of the minor child is certainly maintainable. Court added that it is a settled principle of law that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
Further, it was also held,
“It is also well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. 13. After concluding that writ for habeas corpus.”
Next, the Court addressed the claim of the regarding her being the natural guardian of the three year old child, and in this regard, it was held that in view of proviso to Section 6(a) of the HMG Act, the custody of a minor child who has not completed the age of five years shall ordinarily be with the mother.
Also, the Court added that the in selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child and the custody is not to be decided on legal rights of the parties.
The Court next made recourse to Section 7 of Guardians and Wards Act, 1890 and also perused legal precedents on the matter, from which the Court was of the considered view that the most important consideration which must always weigh with the Court in making orders for the appointment of guardians of minors is the welfare of the minor, and in that view of the matter, the legal rights of the mother, in the case in hand, must be understood subject to provisions of Section 7.
“Under Section 7 of the Act, the Court should be guided by the sole consideration of the welfare of the minor, and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case.”
Coming to the present case, the Court stated that it is true that mother being a natural guardian of a minor child has a preferential right to claim custody of her son, however, the utmost consideration before this Court is the well being of the minor and not the legal right of a particular party. Also, the Court held,
“The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. The term 'custody' should not be interpreted in its strict sense as physical custody. Custody means custody in the sense of supervision and control over the child. The mother's or father's right to the custody of a their minor child is no longer absolute.”
Thus, after concluding that the child was not in illegal custody, the petition was dismissed.
Case Name: Poonam Kalsi v. State Of Punjab And Others
Picture Source :
