The welfare of minor children is paramount in custody disputes, and custody should ordinarily be with the mother if the child is under five years old.

JUDGMENT

Mr. Kuldeep Tiwari, J. (Oral)

The illegal detention of her two minor daughter/alleged detenus, namely, (i) Manreet Kaur, aged 2½ years; and (ii) Mansirat Kaur, aged about 08 months; has compelled the petitioner to knock the doors of this Court through instituting the instant writ of habeas corpus, thereby seeking release of her minor daughters from the illegal detention of respondent Nos.5 to 7 (petitioner's in-laws).

2. What emanates from the record available before this Court, is that, on 05.02.2021, the petitioner was married to one Sukhmeet Singh (son of respondent No.5), whereupon, two minor daughters/alleged detenus were born. However, unfortunately demise of the petitioner's husband occurred in a roadside accident on 04.03.2024, and thereupon, the respondent No.5 (petitioner's father-in-law) created such an exploitative and sexually abusive at-mosphere in her matrimonial house that it became impossible for her to survive there. Refusal of the petitioner to develop physical intimacy with the respondent No.5 resulted in her becoming ousted from her matrimonial house, but without her minor daughters, who were detained by the private respondent (in-laws of the petitioner). Consequently, the petitioner has filed the instant petition seeking release of her minor daughters from the illegal detention of the private respondents.

3. A Co-ordinate Bench of this Court had, on 06.06.2024, after considering the tender age of the minor daughters, directed the Senior Superintendent off Police, Kaithal, to look into the matter with the assistance of the Child Welfare Committee and then to submit a report on his/her affidavit.

4. In defiance of the order dated 06.06.2024, a status report, on affidavit of Upasana, Superintendent of Police, Kaithal was filed before this Court on 14.06.2024. A perusal of this status report makes revelations that the Child Welfare Officer visited the house of respondent No.5 and found that the minor daughters/alleged detenus were being looked after and protected by the family members of respondent No.5.

5. On 14.06.2024, the learned counsel for the respondents No.5 to 7 requested for an adjournment, thereby enabling him to file reply to the instant petition, which was accordingly granted. However, it was clarified that reply, if any, be filed three days prior to the date fixed and in case of failure to do so, it was clarified that the matter would be considered on its own merits, without further awaiting any reply.

6. Today, the learned counsel for the respondents No.5 to 7 has submitted that, since he could file the reply within the stipulated period, therefore, he may be granted an adjournment to file reply before Registry of this Court. This Court declined the request of the learned counsel for the respondents No.5 to 7, but, granted him liberty to file the reply in the Court itself, whereupon, he filed reply and the same is taken on record.

7. The learned counsel for the respondents No.5 to 7 has argued that, prior to institution of the instant petition, the petitioner had filed an application under Section 97 of the Cr.P.C. before the learned Magistrate concerned, thereby seeking custody of the minor children, but, this application was dismissed vide order dated 31.05.2024. Since the petitioner has not assailed the dismissal order dated 31.05.2024, therefore, it has acquired finality and as such, the instant writ of habeas corpus, on the same cause of action, is not maintainable.

8. The learned counsel for the respondents No.5 to 7 has further argued that, in fact, a Panchayati Compromise dated 15.05.2024 has been arrived at between the petitioner and the private respondents, wherein, the petitioner stated that she voluntarily left her matrimonial house, besides stating that she has no concern with her minor daughters.

9. Finally, the learned counsel for the respondents No.5 to 7 has placed reliance upon a verdict rendered by the Hon'ble Apex Court in "Nil Ratan Kundu and Anr. v. Abhijit Kundu",