The welfare of the child is the primary consideration in custody disputes, especially for children under the age of five, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956.

T.P.S.Mann, J.

1. According to the petitioner, Sehajpreet Singh was born to her from the loins of respondent No.4 on 30.11.2006. The petitioner has been suffering from a tumor in her abdomen. On 23.6.2010 she told her husband that the medicines prescribed by Dr. Han Singh Hans from whom she was getting treatment were finished and asked him to purchase the medicines from the market. On this, her husband gave her a capsule by telling her that it was a substitute to the medicines prescribed to her by her doctor. The petitioner consumed the capsule given to her by her husband and thereafter became unconscious. On regaining consciousness, she found herself in the hospital. Instead of looking after the petitioner, respondent No.4 filed a complaint (Annexure P-2) before the Women Cell and levelled false allegations against the petitioner that it was she, who wanted to kill herself and her son by consuming sleeping tablets. The petitioner also made a statement (Annexure P-3) before the Women Cell and stated as to what had happened with her on 23.6.2010 and about her subsequent admission in the hospital at Badhni where she was treated for two days. Respondent No.4 thereafter took the petitioner to her parental home by making a false promise to bring her 31/2 years old son on the next day but despite the same the custody of the minor son was not given to the petitioner. A Panchayat was convened where the petitioner and respondent No.4 besides others were present. After hearing the parties, the Panchayat, vide writing Annexure P- 4, instructed respondent No.4 to hand over the custody of the child to the petitioner. However, on 26.6.2010 respondent No.4 refused to hand over the child to the petitioner by taking the stand that the petitioner was free to take the custody of the child only after obtaining an order from the Court. The petitioner has been cheated by respondent No.4, who after promising to return the minor son of the parties to the petitioner, backtracked from the same. Therefore, prayer has been made for issuance of a writ in the nature of habeas corpus so as to secure the release of the detenu, namely, Sehajpreet Singh, minor son of the parties, from respondent No.4. Learned counsel for the petitioner has submitted that Sehajpreet Singh has yet to complete 4th year of his life. The welfare of such a young child lies in his being in the company of the petitioner who is none else than his mother. The petitioner is also willing to move a petition under Section 25 of the Guardian and Wards Act but as those proceedings are likely tcrtake long, the interim custody of the child be handed over to the petitioner especially in view of the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, as per which the custody of a minor, who has not completed the age of five yeas shall ordinarily be with the mother.

2. Learned counsel for respondent No.4 has submitted that the petitioner is trying to misuse process of the Court by filing the present petition. She has not stated in the petition that she had no other alternative or efficacious remedy except to file the present petition. It has further been submitted that respondent No.4 has already filed a civil suit claiming declaration that he is the lawful guardian of Sehajpreet Singh being his father and the petitioner, who is impleaded as defendant therein be restrained from forcibly taking the custody of the child. It has, however, been clarified that while filing the suit, respondent No.4 has given the name of the child as Jabarjang Singh whereas according to the petitioner the name of her son is Sehajpreet Singh but Jabarjang Singh and Sehajpreet Singh are one and the same child. Learned counsel for respondent No.4 has relied upon the judgment of this Court in Khem Singh v Chiranjiv Singh 2010(3) Law Herald (P&H) 1919, wherein it was held that the Court while assessing the suitability of custody of minor has to take into consideration his welfare and not the