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IN THE HIGH COURT OF ALLAHABAD
RAM MANOHAR NARAYAN MISHRA, J.
Jaibunnnisha @ Jaiba and Another – Petitioners
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 187 of 2023
Decided On : 27-02-2023
Custody - Minor Child - Guardians and Wards Act, 1890 - The court emphasized the mother's preferential right to custody of a minor under 7 years, highlighting the paramount interest of the child's welfare and the mother's biological connection.
Fact of the Case:
The petitioner sought a writ of Habeas Corpus for her minor son, alleging illegal custody by her husband following domestic violence and dowry demands. The petitioner claimed her right to custody based on her status as the biological mother and natural guardian.
Finding of the Court:
The court found that the minor child, being under two years old, should be in the custody of the mother, as her claim to guardianship was prioritized over the father's according to established legal principles.
Issues: Whether the custody of the minor child should be granted to the mother or retained by the father, considering the child's welfare and the mother's legal rights.
Ratio Decidendi: The court held that the welfare of the child is paramount, and the mother has a preferential right to custody of a child under the age of 7, especially in light of the child's tender age and the mother's biological connection.
Result: The petition was allowed, directing the father to hand over custody of the child to the mother within one month.
JUDGMENT :
RAM MANOHAR NARAYAN MISHRA, J.
1. Heard Shri Syed Mohammad Abbas, learned counsel for the petitioner, Shri Saleem Ahmad, Advocate assisted by Shri Manoj Kumar, Advocate appearing for respondent No. 4 and learned A.G.A. for the respondent Nos. 1, 2, 3 and perused the material on record.
2. Instant petition has been filed by the petitioner No. 1 Smt. Jaibunnisha @ Jaiba for the minor son Areeb (corpus) under Section 226 of the Constitution of India against respondents with following prayer to:
(ii) Issue any writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iii) Award the cost of the writ petition in favour of the petitioners.
3. Learned counsel for the petitioners submitted that the marriage of the petitioner No. 1 was solemnized with private respondent No. 4 Aafaq on 5.11.2018 in accordance with Sunni rites and rituals. The corpus- Areeb Aafaq was born out of their wedlock on 1.8.2021 through caesarean operation and entire expenses were borne by the parents of the petitioner as the petitioner was being harassed by her husband and in-laws on account of non-fulfillment of demand of dowry. In the night of 20.12.2022, her husband and in-laws engaged in Maarpeet with her, as a result of which she sustained injuries on her face and her hand. An F.I.R. was lodged by father of the petitioner, namely, Dilshad being case crime No. 657 of 2022, under Sections 498-A, 323, 504, 506, 328 I.P.C. and Section 3/4 D.P. Act at P.S. Garhmukteshwar, District- Hapur against her husband and in-laws. The police investigated the matter and on basis of medical report, Section 308 I.P.C. was added in penal sections. On 20.12.2022, the minor son of the petitioner No. 1 aged around 1 year 4 months at that time was snatched by respondent No. 4, the husband of the petitioner, and she filed a Civil suit being O.S. No. 18/2013 under Sections 7, 10(1) and Section 25 of Guardians and Wards Act before Principal Judge, Family Court on 30.1.2023. A copy of said case application under Section 12 of Guardians and Wards Act has been filed in which she has made prayer for restoration of custody of child to her, who is natural guardian under law. Respondent No. 4 also filed a civil suit being Suit No. 01 of 2023 under Section 25 of Guardians and Ward Act for the custody of minor child on 6.1.2023 with prayer for appointment of guardian of the child Areeb Aafaq, in which he has made false allegations against the petitioner No. 1 that she had deprived the child of his right of mother's milk and had left the child before her husband and mother-in-law and threatened that she will kill the child. He next submitted that in spite of filing the petition for seeking custody of the child, the same is pending before the Principal Judge, Family Court since long and till date no written statement has been filed by opposite party and in view of the slow pace of law, the corpus is being deprived of his right to be nourished and cared by his mother. The right to custody of a minor, being 18 months of age, vests in his mother i.e petitioner No. 1 as such, with a view to seek expeditious and effective remedy, the petitioner No. 1 has approached this Court. Respondent No. 4 has old parents who are vulnerable to take care of the child properly. It is settled law that in the matter of deciding custody of the child, the welfare of the child is of paramount consideration and nobody can ensure welfare of an infant child in comparison to his/her mother. It is also settled law that in custody of minor, who is of 7 years of age, is with his mother ordinarily, therefore, snatching of the child by
The court established that a mother has a preferential right to custody of a minor child under 7 years, emphasizing the child's welfare as the primary consideration.
The court affirmed the natural guardianship rights of the father and the mother's right to custody of a minor until the age of seven, deeming the minor's detention unlawful.
The court established that custody of a minor, following the death of a parent, must be assessed under the Guardians and Wards Act and relevant personal law, with the welfare of the child as the para....
Widow mother is natural guardian of her minor child.
The welfare of the child is the paramount consideration in deciding custody matters, and the legal rights of the mother are subject to the provisions of the Guardians and Wards Act, 1890.
The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
The welfare of the minor child is the paramount consideration in custody matters, and the court should prioritize the child's best interest over legal rights of the parties involved.
Divorce - Illegal detention of son - Grant of custody to mother - Child 3 years old custody given to the petitioner who, being his mother, is the natural guardian.
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.
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