Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(P&H) 543

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Gurbir Singh, J.
Anju Sharma – Appellant
Versus
State of Haryana – Respondent
CRWP No. 6377 of 2024
Decided On : 27-08-2024

Advocates:
Advocate Appeared:
For the Appellant : Ketan Chopra.
For the Respondents: Gurmeet Singh, Sanaf Khan.

IMPORTANT POINT
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.

Headnote:
Habeas Corpus - Child Custody - Hindu Minority and Guardianship Act, 1956 - Section 6 - The court emphasized that custody of a child under five years is ordinarily with the mother, establishing the presumption of maternal custody unless rebutted by the father.
Fact of the Case:
The petitioner sought a writ of habeas corpus for her son, Aayansh, who was allegedly taken illegally by the father after a history of domestic abuse and marital discord. The petitioner claimed the father had no legal right to custody.
Finding of the Court:
The court found that the minor child was in the illegal custody of the father, as there was no court order granting him custody. The court emphasized the importance of maternal custody for a child of such a young age.
Issues: Whether the custody of the minor child was illegally taken by the father and whether the mother is entitled to the child's custody under the Hindu Minority and Guardianship Act.
Ratio Decidendi: The court held that under Section 6 of the Hindu Minority and Guardianship Act, custody of a child under five years is presumed to be with the mother, and this presumption can only be rebutted by showing that the mother's custody is not in the child's best interest.
Result: The petition was allowed, directing the immediate return of the child to the mother.

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 22.05.2024 and since then, she has been residing there along with her minor son.

2.1 It has also been pleaded that respondent No. 4 is habitual of living in adultery. The petitioner even caught hold respondent No. 4 while chatting on mobile with a prostitute. When the petitioner confronted respondent No. 4 that he was maintaining illicit relations while cohabiting marriage with her, she was thrown out of the matrimonial home. She filed a case under the DV Act and another case under Section 125 of Cr.P.C. for claiming maintenance. On coming to know about said cases, respondent No. 4 started pressurizing to claim the custody of minor son. When she disagreed that minor son was totally dependent upon her, he extended threats that he had all means and would do anything possible in order to take the custody of the minor son. On 26.06.2024, her minor son was found missing from her parental home and on checking the CCTV footage, it was seen that respondent No. 4 in connivance with his sister i.e. respondent No. 7, while covering their faces, picked up the minor son, illegally from the custody of mother, on a scooter bearing No. HR-85-E-8934. The photograph of respondent No. 4 is annexed herewith as Annexure P-2. The petitioner immediately lodged an FIR on the same day i.e. 26.06.2024, bearing No. 253 under Section 365 IPC at Police Station Ambala Cantt (Annexure P-3). Respondent No. 4 preferred anticipatory bail and the learned Additional Sessions Judge, Ambala, vide order dated 29.06.2024, granted him interim anticipatory bail. It has been pleaded that her minor son was illegally taken away and is in unlawful custody of private respondents No. 4 to 7.

2.2 The official respondents No. 1 to 3 filed reply by way of affidavit of Rajat Gulia, HPS, Deputy Superintendent of Police Ambala Cantt., District Ambala that the FIR No. 253, dated 26.06.2024 (supra) was registered on the complaint of petitioner. On 27.06.2024, the Investigating Officer in the company of petitioner reached at the house of accused-respondent No. 4, but he, minor son and Payal (sister of respondent No. 4) were not found there. Thereafter, on the advice of petitioner, the police party reached at the house of maternal uncle of respondent No. 4 at Shahbad but they were also not found there. It has been further submitted that in the application so filed by respondent No. 4 for grant of anticipatory bail, it was admitted by him that the minor child was in his custody. Vide order dated 29.06.2024, he was granted anticipatory bail and directed to join investigation. Pursuant to said order, respondent No. 4 joined investigation on 01.07.2024, but refused to hand-over the custody of minor child to the petitioner. Although State opposed the anticipatory bail application on the ground that minor was only