The welfare of the minor child is the paramount consideration in custody matters, and the legal rights of the mother are subject to the welfare of the child.

JUDGMENT :

Sant Parkash, J.

The case has been taken up for hearing through video conferencing.

1. The petitioner has filed the present petition under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus directing respondents No.2 to 4 to get detenue-Pariza, minor daughter of the petitioner, released from illegal custody of respondents No.5 to 11 and hand over her custody to the petitioner.

2. The petitioner has averred in the petition that she was married to respondent No.5 Ramandeep on 22.11.2014 as per Hindu rites and ceremonies. Out of the wedlock, one daughter namely Pariza was born on 30.12.2015. Matrimonial dispute arose between the petitioner and her husband & family members. On 13.09.2020, the petitioner and her minor daughter were abused and physically assaulted by the private respondents. The petitioner finding no help, made a call to her father whereupon her father along with her brother reached house of respondents No. 5 to 8. The petitioner along with her minor daughter Pariza somehow managed to come out of the house of respondents No.5 to 8. Thereafter, respondents No. 9 to 11 came on the spot and snatched the detenue-Pariza from the petitioner and took her inside the house. The accused persons caused injuries to the petitioner, her father and brother.

3. The petitioner moved an application for grant of custody of the minor child before the Senior Superintendent of Police, Fazilka and also to the Child Development Presiding Officer, Jalalabad but no action had been taken on the same.

4. Learned Counsel for the petitioner has vehemently contended that the deteneu Pariza is around the age of five years and a female child, therefore, the petitioner being biological mother is entitled for her custody. Further, the petitioner is under worry due to bad conduct of the private respondents towards the detenue, who shall spoil her future and welfare. Therefore, the petition may be allowed and custody of the minor child may be ordered to be handed over to the petitioner-mother by issuance of a writ of habeas corpus. It is a settled principle of law that once the natural guardian i.e. Mother of the minor is alive, no other person can claim the custody of minor child. Hence the petitioner craves for indulgence of this Court to get the custody of her minor daughter from respondent Nos.5 to 11.

5. Learned Counsel for the State, on the basis of reply filed on behalf of respondents No. 1 to 4, has submitted that there has been a matrimonial dispute between petitioner and respondent No. 5 along with their family members, which has resulted into multifold litigation. Further, during enquiry on the matter regarding the custody of the minor child, it has become clear that neither minor daughter Pariza has been snatched from the petitioner as alleged in the petition nor is she living in any sort of pathetic situation. The detenue-Pariza is having deep rooted love and affection with respondent No. 5 as well as her grand parents i.e. Respondent Nos. 6 and 7 and she is being looked after and maintained.

6. Learned State Counsel has further submitted that the present petitioner wants to take custody of the child without following the due course of law. The petitioner and her parental family forcibly tried to take custody of detenue-Pariza from respondent No. 5. Respondent No. 5 has filed Civil Suit for injunction bearing No. CS132/2020 which is pending before the Court learned Civil Judge (Junior Division) Jalalabad and the order of status quo regarding the custody of minor child Pariza has been passed.

7. Learned Counsel for respondent Nos. 5 to 11, taking the contents of reply filed on their behalf, submitted that detenue namely Pariza on the present date is more than five years and is studying in Sacred Heart Convent School, Jalalabad which is one of the best school of the area. The girl child Pariza is being taken well care by the respondents and respondent No. 5 is regularly paying her school fees. Th