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.

JUDGMENT :

Mr. Kirti Singh, J.:- The jurisdiction of this Court has been invoked under Article 226 of the Constitution of India read with Section 528 of BNSS, 2023 by the petitioner-mother for issuance of a writ in the nature of Habeas Corpus for the release of detenue-Dhairya Saini (her son) aged 08 months from the illegal custody of respondent No.4-Rohit Saini (father).

Facts

2. Succinct factual narrative relevant for the disposal of the instant petition is that the petitioner was married to respondent No.4-Rohit Saini on 27.09.2022. The marriage between the petitioner and respondent No.4 was an elopement. At the time of marriage, Rohit Saini was divorced from his first wife. The petitioner along with her husband Rohit Saini had filed a petition bearing No.CRWP-9452-2022 seeking protection of life and liberty which was disposed of vide order dated 30.09.2022 with a direction to the Senior Superintendent of Police, Gurdaspur to look into the representation given by the petitioners.

2.1 From the wedlock one male child, namely, Dhairya Saini was born on 14.12.2023. Due to marital discord, the petitioner who was living with respondent No.4, was severely beaten and thrown out of the matrimonial house. She was not allowed to take her child along with her and respondent No.4 along with his parents forcibly retained the custody of the child. A copy of the MLR of the petitioner is attached as Annexure P2.

2.2 The petitioner along with her parents had approached the local police along with a copy of the MLR and had requested that the custody of the child be taken from respondent No.4 and handed over to the petitioner who was being nursed by the mother. However, no police assistance was provided to the petitioner.

Submissions made by learned counsel for the petitioner

3. It has been pleaded by learned counsel for the petitioner that the petitioner who is the mother of the child was mercilessly beaten by respondent No.4-Rohit Saini and thrown out of her matrimonial house without a consideration that the child was being nursed by his mother. The child is of a tender age of 08 months and needs love, affection, care and feed of his mother who is her natural and legal guardian. The petitioner is presently living in her parents’ house and is capable to take care of the welfare of the child. It has further been argued that as per Section 6 of the Hindu Minority & Guardianship Act, 1956, the custody of a minor child, who has not completed the age of 05 years, shall ordinarily be with the mother. He has placed reliance upon an order dated 10.04.2017 passed by the Hon’ble Supreme Court in SLP-2723-2017 titled as Manpreet Singh and others Vs. State of Punjab and others, an order dated 27.08.2024 passed by a Coordinate Bench of this Court in CRWP-6377-2024 titled as Anju Sharma Vs. State of Haryana and others, and judgment dated 24.07.1986 passed by the Himachal Pradesh High Court in Criminal Writ Petition No.16 of 1986 titled as Kamla Devi Vs. State of Himachal Pradesh and others, and judgment dated 07.03.2017 passed by a Coordinate Bench of this Court in CRWP-68-2017 titled as Kirandeep Kaur Vs. State of Punjab and others in support of his contentions.

Submissions made by learned counsel for respondent No.4

4. On the other hand, Mr. Nikhil Ghai, Advocate appearing on behalf of respondent No.4 has argued that the petition filed by the petitioner is liable to be dismissed as it is not maintainable. Since, respondent No.4 is the father of the detenue and therefore, the detenue cannot be said to be in illegal custody of respondent No.4. Further, the relief sought by the petitioner cannot be granted in a Habeas Corpus petition as the alternative and effective remedy is already available with the petitioner which has not been availed. It has also been argued that the petitioner has not approached the Court with clean hands and she herself abandoned the child with respondent No.4 and left the matrimonial house. He further submits that the entire occurrence was