The paramount consideration in child custody cases is the welfare of the child, overriding parental rights, as established by the court's inherent jurisdiction in habeas corpus petitions.

Order :

1. This habeas corpus petition has been filed on behalf of the petitioner who is mother of the corpus i.e. two children; Maulik Bansal (son) aged about ten years and Khushi Bansal (daughter) aged about seven years.

2. The petitioner has stated in the writ petition that respondent no.6 (father of the corpus) has taken away the corpus without the permission of the petitioner-mother. It has been further stated in the writ petition that both the children are living with the mother for the last about two years and they are studying in a school at Jaipur. It has been further stated in the writ petition that earlier there was a family dispute on account of which a consent decree of divorce was granted by the concerned Family Court at Ludhiana, Punjab vide order dated 30.10.2018. Lastly, prayed for handing over the custody of the minor children to her.

3. Reply to the writ petition has been filed on behalf of the respondent no.6 (husband of the petitioner and father of two minor children) wherein it has been stated that the consent decree of divorce was granted by learned Additional District Judge, Ludhiana vide order dated 30.10.2018. In the said decree of divorce, it was specifically mentioned that the custody of the boy namely Maulik Bansal shall remain with the respondent no.6- father and custody of the daughter namely Khushi Bansal shall remain with the petitioner-mother. Thereafter, in separate proceedings under Section 6 of Hindu Minority and Guardianship Act , 1956 before the Court of Additional Principal Judge, Family Court, Ludhiana, the custody of the minor girl namely Khushi Bansal was also handed over to respondent no.6 on 24.09.2019. It has been further stated in the reply that wife (petitioner- mother), without informing respondent no.6 (her husband) came to Jaipur along with two minor children and started living in Jaipur. Thereafter, respondent no.6 (father) filed application under Section 97 of Cr.P.C before the competent authority in which the petitioner-mother has given an undertaking that she will appear before the concerned authority along with her children on 10.11.2023. The said undertaking was given by the petitioner on 07.11.2023. Counsel for respondent submits that both the children are residing with respondent no.6 (father) and with their grandparents in a lawful manner, and therefore, he prayed for dismissal of the writ petition.

4. We have heard counsel for the parties and perused the record.

5. The Hon’ble Supreme Court of India, in the matter of ‘ Col. Ramneesh Pal Singh versus Sugandhi Aggarwal ’, reported in 2024 6 SCR 259 , in paragraphs no.10 and 11 held as under:-

“10. In this context, it would be appropriate to refer to a decision of this Court in Nil Ratan Kundu (Supra) wherein parameters of ‘welfare’ and principles to be considered by courts whilst deciding questions involving the custody of minor children came to be enunciated. The relevant paragraph(s) are reproduced as under:

“52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical