P&H High Court Denies Habeas Corpus Plea For Custody By Mother Of Minor Who Wanted To Stay With Step-Father's Family, Allows Visitation

The Punjab & Haryana High Court has made it clear that a habeas corpus petition is maintainable for custody of a minor child but along with proving the detention illegal, welfare of the child is also important.

In the case at hand, a mother had filed a habeas corpus plea seeking custody of her minor daughter born from her first marriage, who was allegedly illegally detained by her second husband and his family, having no relation with the child.

While dismissing the plea, Justice Deepak Gupta said, "in child custody matters, the writ of habeas corpus is maintainable, where it is proved that detention of the minor child by a parent or others was illegal and without any authority of law but at the same time, what is important is the welfare of the child."

The Court further noted that the private respondents are not the lawful guardians of the minor child, whereas the petitioner being the mother is the natural guardian. However, it said that it cannot ignore the fact that the child is now aged 8 years, was strongly attached to respondent No.7 (mother-in-law of the petitioner) and flatly refused to accompany her mother to the extent that when the Court directed handing over the custody of the child to petitioner-mother, the minor started crying loudly and stated that she wanted to accompany the mother-in-law of the petitioner and not the petitioner.

These observations came in response to the plea filed by the mother under Article 226 of the Constitution, seeking issuance of a writ of Habeas Corpus to direct the official respondents to produce the detenue, daughter of the petitioner, who was stated to be in unlawful and illegal custody of her second husband and his family.

The counsel for the petitioner argued that being the mother, the petitioner is the lawful guardian of the minor child, whereas respondents have no relationship with the child, who was born from the first wedlock of the petitioner, whereas respondent No.4 was the second husband and other private respondents are the brothers/parents of respondent No.4.

Considering the submissions, the Court noted that when the child was called by the Court in the chamber for interaction, she had expressed that "she did not want to accompany her mother-petitioner" and that she wanted to go with the mother of her step-father.

The Court also referred to Nil Ratan Kundu and another Abhijit Kundu, [2008(3) RCR (Civil) 936] wherein the Apex Court that the word "welfare" used in Section 13 of the 1956 Act must be interpreted liberally and that said word 'Welfare' must be taken in its widest sense. The moral and ethical welfare of the child must also be weighed with the Court as well as its physical well-being, it was held.

In light of the above, the Court opined that the child, being aged above 8 years, is old enough to form an intelligent preference as to with whom she wants to stay.

"This Court cannot ignore the wishes as expressed by the child. As the report filed by the official respondents would reveal that the minor is studying in Ist Standard...and all the educational and maintenance expenses are being borne by respondents No.4 and 7 (step-father and his mother)," said the Court.

"The report further reveals that petitioner had once taken away the minor child along with a person namely Deep, where the minor was confined in a room and was not even provided with proper food etc. The impact of the conduct of the petitioner on the psyche of the child as of now is that she is not ready to accompany her in any situation," it added.

While dismissing the plea, considering the that petitioner was the real mother of the minor and that with time, the minor may develop some bonding with the mother, the Court directed that the petitioner be allowed by the private respondents to meet the minor child.

Appearance: Vipan Kumar Sharma, Advocate, for the petitioner Sarabjit Singh Cheema, AAG, Punjab.

Raj Kaur-respondent No.7 in person along with  Harkirat S. Sandhu, Advocate, for respondents No.7 & 8.

Citation: 2024 LiveLaw (PH) 11

Title: X v. Y