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GURBIR SINGH
Anju Sharma – Appellant
Versus
State of Haryana – Respondent
JUDGMENT :
Gurbir Singh, J.
1. This petition has been filed under Article 226 of the Constitution of India by the mother for issuance of a writ in the nature of Habeas Corpus for the release of detenue her son, namely, Aayansh, aged about 2.5 years, from the illegal custody of respondents No. 4 to 7.
2. In brief the facts necessary for the disposal of present petition are that the petitioner is a resident of Ambala Cantt. The marriage of petitioner was solemnized with respondent No. 4 on 18.11.2015. Out of said wedlock, one boy, namely, Aayansh was born on 26.02.2022. She was being harassed by her in-laws i.e. respondents No. 4 to 7 on one pretext or the other and also mercilessly beaten up by respondent No. 4. In order to save her matrimonial home and for betterment of her child, the petitioner kept bearing all the sufferings given by the private respondents. On 19.05.2024, respondent No. 4, after giving beatings to the petitioner, threw her out of the home with the minor child. Hoping that things will be sorted out in a day or two, she went to the house of her aunt, but when respondent No. 4 did not come to take the petitioner and the minor son back, she went to her parental home on
Custody of a child under five years is presumed to be with the mother, and this presumption is rebuttable only by demonstrating the mother's unsuitability.
In custody disputes, the welfare of the child is paramount, and custody of a child under five years should ordinarily be with the mother, as per Section 6 of the Hindu Minority & Guardianship Act.
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 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.
Point of law: Custody of child - In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is ill....
Point of Law : It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
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