'Grave Cruelty': P&H High Court Rejects In-Laws Plea That Pregnant Mother Can't Care For Firstborn Child, Orders Return Of Custody

The Punjab and Haryana High Court has allowed a Habeas Corpus petition filed by a mother seeking custody of her three-year-old son from her in-laws, reiterating that unless the mother is shown to be wholly unsuitable, the custody of a child below five years must ordinarily remain with her. [2026 LiveLaw (PH) 232]

Justice Jasjit Singh Bedi said, "There is absolutely nothing to suggest in the reply filed by the private respondents that the petitioner is unsuitable in any way to take care of the child other than stating that as she is pregnant with another child and financially dependent she would be unable to take care of her son Yuvrajpreet Singh. In fact, it would be grave cruelty to the mother in case at this stage of her life when she is pregnant once again, her first born is taken away from her who himself is only of the age of about 03 years. The father, the grandmother, uncles and aunts of a child cannot take care of him the way the mother can, as is sought to be urged."

The Court was hearing a plea filed by a woman seeking a writ of Habeas Corpus directing her in-laws to hand over custody of her minor son, alleging that they had forcibly retained the child after she was driven out of her matrimonial home.

The petitioner had entered into marriage the respondent in August 2021, following which the couple had sought protection of their life and liberty from their respective parents before the District and Sessions Judge, Amritsar. A son was born to them on 12.05.2023.

According to the petitioner, soon after the marriage, close relatives of her husband began harassing her for dowry, while her husband, allegedly addicted to drugs, went abroad for work.

The situation worsened thereafter, and she was forced to leave the matrimonial home along with her minor son, she claimed. Her husband, calling from Dubai, allegedly threatened to have her father and brother killed, following which, out of fear, she returned to the matrimonial home.

Counsel for the respondents submitted that the child had since been admitted to a good school and was being adequately cared for, that the petitioner's mother had passed away leaving no female family member to assist her, and that the petitioner, being pregnant again, would be unable to look after the child herself.

It was further contended that a writ of Habeas Corpus does not lie against a father, and that the petitioner's remedy lay in proceedings under the Hindu Minority and Guardianship Act, 1956, or the Guardianship and Wards Act, 1890.

The Court examined Section 6 of the Hindu Minority and Guardianship Act, 1956, which designates the father, and after him the mother, as the natural guardian of a Hindu minor boy, subject to the proviso that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

The Court thus reiterated, "An examination of the aforementioned judgments would establish beyond doubt that a Habeas Corpus petition seeking custody of a child is maintainable at the instance of either parent. The welfare of the child is of paramount importance and therefore, custody should be granted to that parent in whose custody the welfare of the child is better taken care of. Further, unless the mother is wholly unsuitable to be granted the custody of a child, ordinarily the custody of a child below the age of 05 years must be with the mother."

Noting that mediation between the parties had failed and that the child was only about three years and two months old, the Court found nothing on record to establish that the petitioner was unsuitable to care for her son, the respondents' objections being confined to her pregnancy and financial dependence.

The Court held that removing the child from the mother at this stage of her life would amount to grave cruelty to her, and that no other family member, be it the father, grandmother, uncle or aunt could substitute for the care a mother provides.

The Court allowed the petition and directed the respondents and Jagjit Singh to hand over custody of the minor child, to the petitioner forthwith, with the Senior Superintendent of Police directed to ensure compliance and file a compliance affidavit within one week of the child's custody being handed over.

The Court, however, clarified that the mother would be required to grant access to the father, subject to the convenience of both parties and the welfare of the child.

Title: XXX v. State of Punjab & others

Counsel for the Petitioner: Mr. Arun Abrol, Advocate

Counsel for the State of Punjab: Mr. Athar Ahmed, DAG, Punjab

Counsel for Respondent Nos. 4 to 7: Mr. Ritesh Pandey, Advocate

Click here to read order