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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Sant Parkash, J.
Poonam Kalsi – Appellant
Versus
State Of Punjab & Ors. – Respondents
CRWP-7913-2020
Decided On : 20-04-2022
HABEAS CORPUS - CUSTODY DISPUTE - Hindu Minority and Guardianship Act, 1956, Section 6 ; Guardians and Wards Act, 1890, Section 7 - The court discussed the legal provisions of custody of a minor child under the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890. It emphasized the paramount consideration of the welfare of the child in deciding custody matters and highlighted the presumption that the custody of a minor child below the age of five years shall ordinarily be with the mother. The court also noted that technical objections cannot come in the way if the welfare of the child demands a different custody arrangement. The judgment emphasized that the welfare of the child is the decisive factor for the claim of custody and that the court should strike a balance between the welfare of the child and the rights of the parents over the child.
Fact of the Case:
The petitioner filed a habeas corpus petition seeking custody of her minor son from the respondents. The respondents contested the petition, arguing that the petitioner should approach the Family Court for custody and that the father, as a natural guardian, had the right to the custody of the minor child. The court considered the welfare of the child and the disputed factual matrix, ultimately finding that the minor child had not been kept in illegal custody and dismissing the petition.
Finding of the Court:
The court found that the custody of the father as a natural guardian could not be said to be illegal or unlawful and therefore dismissed the habeas corpus petition. It emphasized that in cases of disputed questions of facts, evidence should be led by both parties to determine which party would be in a better position to take care of the minor child, with the welfare of the child being the paramount consideration.
Issues: The main issue was the custody of the minor child and whether the petitioner was entitled to his custody under the writ of habeas corpus.
Ratio Decidendi: The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child. The court also emphasized the presumption that the custody of a minor child below the age of five years shall ordinarily be with the mother.
Final Decision: The court dismissed the habeas corpus petition, finding that the minor child had not been kept in illegal custody and granting the petitioner the liberty to approach an appropriate court under relevant provisions of law seeking the relief claimed in the petition.
JUDGMENT
Sant Parkash, J. - 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 for appointment of a warrant officer to raid the premises of respondent Nos. 4 to 9 and to recover the detenue namely Lovepreet Bains aged 3 years (minor son of the petitioner) from illegal confinement of respondent Nos. 4 to 9.
2. The petition has been filed on the averments that husband of the petitioner used to beat her on instructions of his mother without any reason and caused injures on the neck of the petitioner. On 26.07.2020, the petitioner made a written complaint to the police officials that her in-laws forcibly took the custody of her minor son of 3 years. The petitioner also made a request before the SeniorSuperintendent of Police Rural Jalandhar as well as to SHO and DSP regarding handing over the custody of minor son to the petitioner but no action has been taken on the same.
3. It has been further averred that the husband and in-law family of the petitioner are habitual offender as more than 198 FIRs under the NDPS Act have been registered against them.
4. That respondent No. 4 i.e. husband of the petitioner has filed suit for permanent injunction restraining the defendants from interfering into peaceful life of plaintiff in any manner and further restraining the defendants not to forcibly take away the minor child namely Lovepreet Bains from the custody of plaintiff. The said civil suit is pending before the Court of learned Additional Civil Judge (Senior Division) Nakodar. No interim injunction has been granted therein.
5. The petitioner by way of CRM-W-380-2022 placed on record the photographs of her husband while he was in America. In her application she stated that her husband i.e. respondent No. 4 went to America and left his minor child in India with her mother in law and her mother-in-law is not the natural guardian of the minor son. Therefore, the petitioner craves for indulgence of this Court to get the custody of her minor son from respondents No. 4 to 9.
6. Learned Counsel for the petitioner has contended that the detenue Lovepreet Bains is around the age of three years 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 his 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.
7. In support of his arguments, learned Counsel for the petitioner has placed reliance on judgment passed by Co-ordinate Benches of this Court in case CRWP No. 9723 of 2020 titled as 'Pinki Agarwal Vs. State of Punjab and others', decided on 20.12.2021 ; CRWP No. 1423 of 2019 titled as 'Mandeep Kaur Vs. State of Punjab and others', decided on 03.11.2020; CRWP No. 3013 of 2020 titled as 'Neha Vs. State of Haryana and Ors.', decided on 01.06.2020 and judgment passed by Hon'ble Supreme Court in case titled as 'Syed Saleemuddin Vs. Dr. Rukhsana' 2001(2) RCR (Civil) 613.
8. Learned Counsel for the State, on the basis of reply filed on behalf of respondents No. 1 to 3, has submitted that there has been a matrimonial dispute between petitioner and her husband. There is no such illegal detention of the younger child Lovepreet Bains as alleged by the petitioner in the present petition. Out of two children, elder child is living with the mother and the younger child is living with father. The petitioner is required to adopt the legal procedure under Law of Guardianship for taking the guardianship of the child by filing suit in the competent court of law.
9. Learned Counsel for respondent Nos.4 to 9, taking through the contents of reply filed on their behalf, submitted that if the petitioner is aggrieved of having the custody of detenue Lovepreet Bains, then she can avail appropriate remedy avail
The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
The welfare of the child is the supreme consideration in custody matters, and habeas corpus proceedings are not the appropriate forum for resolving custody disputes that require detailed factual inqu....
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.
The welfare of the child is the paramount consideration in determining custody, and the writ of habeas corpus is maintainable in child custody matters where the detention of a minor child by a parent....
The extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in exceptional cases where the ordinary remedy provided by the law is either unavailable or ineffective, and the welfare....
The main legal point established in the judgment is that the custody of a minor child with the father as the natural guardian cannot be held illegal or unlawful unless it is in breach of some authori....
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