The custody of minor children under five years is presumed to rest with the mother, emphasizing that the welfare of the child is the paramount consideration in custody disputes.

JUDGMENT :

SUMEET GOEL, J.

1. The petition in hand filed, under Articles 226/227 of the Constitution of India, is for issuance of an appropriate writ, order or direction to the respondents to produce the minor sons (hereinafter referred to as ‘children in question’) before this Court and to grant their custody to the petitioner, who is their mother, as they are of tender age and require mother’s care, affection and protection.

2. Shorn of non-essential details, the relevant factual matrix of the lis in hand is adumbrated, thus:

(i) The marriage of the petitioner was solemnized with respondent No.2 namely Lakhwinder Singh about three years ago as per Sikh rites. Out of the wedlock, two sons were born i.e. Karandeep Singh (DOB: 22.01.2022) and Sartaj Singh (DOB 01.03.2023).

(ii) After the birth of the second child, the petitioner has stated that she was subjected to persistent cruelty, harassment and dowry demands by her husband (respondent No.2 - herein) and in-laws. Despite providing additional articles and furniture items amounting to Rs.2,50,000/- on 10.11.2023 to maintain peace, the maltreatment continued. The petitioner alleged that she was ousted from her matrimonial home but after compromise, she was allowed to stay at her matrimonial home.

(iii) It was alleged by the petitioner that she later discovered that respondent No.2, was maintaining an illicit relationship with respondent No.3. Thereafter, her harassment intensified at the hands of her husband i.e. respondent No.2 as also by her in-laws. On 22.11.2023, the petitioner was physically assaulted, wrongfully confined and prevented from seeking police assistance. On 23.11.2023, when the mother of the petitioner intervened, she too was beaten. Thereafter, written complaints were submitted to the police (copy whereof has been appended as Annexures P-1 to P-3), but to no effective avail.

(iv) The petitioner has further alleged that, despite and oral assurance that the custody of the minor children would be restored to the petitioner, she was forcibly ousted from her matrimonial home during the night of 22/23.11.2023 and her children were wrongfully retained by private respondents. Since then, the petitioner has been denied access to her minor sons. Thereafter, the petitioner made number of complaints before the police authorities and women Cell (Copies whereof have been annexed as Annexures P-4 & P-5 with the instant petition), no action have been taken. Owing to the deliberate inaction by the police authorities, who are acting under the influence of respondent No.2, the petitioner was left with no option but to approach this Court by way of the petition in hand.

(v) During the pendency of the present petition before this Court, the parties were referred to Mediation and Conciliation Centre of this Court, but the same did not fructify. It is in the above backdrop that the instant petition has come up for hearing before this Court.

3. Learned counsel for the petitioner-mother has iterated that children in question are of tender age and, at this stage of growth, they are in utmost need of the love, care and affection of their mother. However, the children in question have been forcibly and unlawfully snatched away from the petitioner thereby depriving them of the motherly care. Furthermore the conduct of the private respondents amounts to a blatant violation of Section 6 of the Hindu Minority and Guardianship Act, 1956 which clearly gives preferential right to the mother for the custody of the minor children below the age of five years. Learned counsel has further iterated that the petitioner- mother has sufficient economic resources available at