In custody disputes involving minors under five, the court prioritizes the welfare of the child and generally favors maternal custody unless compelling circumstances dictate otherwise.

JUDGMENT :

VIKRAM AGGARWAL, J.

The instant revision petition, under Article 227 of the Constitution of India, assails the order dated 02.12.2024 (Annexure P-1), passed by the Court of learned Principal Judge, Family Court, Jind vide which the application (Annexure P-10), filed by the petitioner for the grant of interim custody of the minor child (Aadhish) was dismissed.

2. Shorn of unnecessary details, the marriage of the petitioner was solemnized with the respondent on 26.05.2019 at Jind as per Hindu rites and ceremonies. A male child (Aadhish) was born from the said wedlock on 16.12.2021. It appears that certain differences cropped up between husband and wife as a result of which, a petition under Section 13 -B of the Hindu Marriage Act, 1955 (for short ‘the HMA , 1955’) (Annexure P-2) for dissolution of marriage was preferred. A joint statement upon first motion was recorded on 31.01.2021 (Annexure P-3). It was stated that the parties had settled their disputes amicably regarding dowry articles, alimony, maintenance etc. and that the respondent (husband) would pay a sum of Rs.9,00,000/- as permanent alimony to the petitioner out of which Rs.4,50,000/- was received by way of a demand draft on the day of the statement and the balance amount was to be received at the time of second motion. It was also recorded that the custody of the minor child Aadhish had been handed over by the petitioner to the respondent and that she would not claim his custody and visitation rights in future. It was recorded that both the parties would remain bound by the statement relating to the custody of the minor child.

3. However, on 16.03.2024, the petitioner appeared before the learned Family Court, Jind and gave a statement that she did not wish to take divorce and that she wanted back the custody of the minor child. Accordingly, the Court summoned both the parties for 01.04.2024 for reconciliation purposes which failed. The stand taken by the petitioner was that she had been kept in the dark when the custody of the child was handed over to the respondent by her parents and she was told that the child would be given to the respondent only for the purpose of meeting him. Finally, the petition preferred under Section 13 -B of the HMA , 1955 was dismissed vide order dated 15.04.2024 (Annexure P-7). An appeal against the same, preferred by the respondent, is stated to be pending before a Division Bench of this Court.

4. A petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890, seeking custody of the minor child (Annexure P-8) was filed by the petitioner. The said petition was opposed by way of a written statement (Annexure P-9). An application for the grant of interim custody of the minor child (Annexure P-10) was also moved by the petitioner which was also opposed by way of a reply (Annexure P-11)

5. By way of the impugned order dated 02.12.2024, the said application for the grant of interim custody of the minor child was dismissed, leading to the filing of the instant revision petition.

6. I have heard learned counsel for the parties.

7. Learned counsel for the petitioner submits that the impugned order vide which the interim custody of the child was declined and only visitation rights were granted is not sustainable keeping in view the statutory provisions and the law on the subject. Learned counsel submits that the minor child is 3.5 years old and the custody of a child below the age of five years should ordinarily be with the mother. He submits that despite this settl