The welfare of the child is of paramount importance in custody disputes, and the provisions of the Hindu Minority and Guardianship Act prioritize the custody of a minor under 5 years with the mother.

JUDGMENT

Jaishree Thakur, J. - The petitioner herein prays for the issuance of a writ order or direction especially in the nature of Habeas Corpus for seeking custody of the minor son Armaandeep Singh, aged about 4 years, from the custody of respondent No. 5.

2. In brief, the facts as stated are that the petitioner and respondent No. 5 solemnized a marriage on 11.03.2007 out of which wedlock a daughter was born to them on 4.01.2008. The petitioner was allegedly harassed in her matrimonial home by respondent No.5 and she was subjected to physical abuse as well. On account of ill-treatment, the petitioner came back to her paternal home along with her minor daughter on 8.1.2009 and pursued higher studies. Her father-in-law died on 1.9.2015 and then the petitioner, along with her parents, went to her matrimonial home to pay condolences, where she was persuaded to stay back and join the company of her husband by the relatives who had gathered there. Respondent No. 5 also promised to mend his ways and keep her properly without beating, humiliating or harassing her in any manner. A baby boy named Armaandeep Singh, the detenue, was born to the couple on 21.11.2016. However, respondent No. 5 did not stop his harassment or physical abuse with the result that the petitioner came back to her paternal home on 25.06.2020 along with the children and she informed her husband that she would not be returning to the matrimonial home. On 3.7.2020, respondent No. 5 came to the residence of her parents and forcibly tried to take the minor son. However, the brother of the petitioner saw the incident and managed to rescue the child. The petitioner accordingly made a complaint to the police on 3.7.2020 and on the intervention of the police, a compromise was arrived at between the parties. It was agreed that no action would be taken against respondent No. 5 and that respondent No. 5 would only meet the children after having obtained visitation rights from the court. Consequently, the complaint was ordered to be filed on 17.07.2020. On 11.09.2020, the minor child was playing on the street when he was taken away by some unknown persons on a scooter. The petitioner and family members lodged a complaint with the police station and when despite several raids at the house of respondent No. 5 and other suspected places, the minor child was not traceable, an FIR was registered regarding the kidnapping of the minor child. Respondent No.5 filed application for grant of anticipatory bail before the Additional Sessions Judge where the matter was referred to the Mediation and Conciliation Centre of the Court and respondent No.5 was asked to join investigation. While confirming the bail, the court observed that the petitioner can get the custody by resorting to due course of law. Hence, this writ for habeas corpus.

3. Mr. Divjyot Singh Sandhu, learned advocate appearing on behalf of the petitioner, would contend that respondent No. 5 has kidnapped the detenue and he is in his illegal custody. It is argued that as per Section 6 of the Hindu Minority and Guardianship Act, custody of a minor less than 5 years shall remain with the mother, apart from arguing that respondent No.5 has clearly violated the settlement arrived at between the parties on 17.7.2020 wherein it had been agreed that respondent No. 5, the father, could meet the children only after getting orders from the court. It is further submitted that the minor needs tender affection, caring and company of a natural mother, and such needs of a minor child of tender age cannot be met by the father.

4. Mr. Gagan Pradeep Singh Bal, learned advocate appearing on behalf of respondent No. 5, submits that the respondent No.5 herein is the natural guardian being the father and has every right to the custody of the minor child. It is categorically denied that the respondent had on an earlier occasion tried to remove the minor from the custody of the mother and in fact it was the uncle who had taken the child from him. It i