News Updates

Allahabad High Court Allows Mother's Habeas Corpus Plea Seeking Child's Custody From Father

Akshita Saxena
22 Feb 2021 6:18 AM GMT
Despite Marrying Willingly A Minor Girl Can’t Be Allowed To Stay With Husband Till She Attains Majority

The Allahabad High Court on Friday allowed the habeas corpus petition of a mother, seeking the custody of her child aged three and a half years, from her husband (the child's father).

A Single Bench of Justice JJ Munir observed that there is a strong presumption about a child's welfare to be better secured in the mother's hand.

It observed,

"It is the precipitate wisdom of generations that a young child's welfare is better ensured in the hands of the mother than the father, or for that matter, anyone else. It is in keeping with this transcendent experience of mankind that the proviso to Section 6(a) of the [Hindu Minority and Guardianship] Act of 1956 reserves to the mother the right to the child's custody until the age of five years."

Section 6 lays down the Rule that notwithstanding the father being the natural guardian, the custody of a minor, who has not completed the age of five years, ought to ordinarily be with the mother.

[Note: Supreme Court in Githa Hariharan (Ms) & Anr. v. Reserve Bank of India & Anr., (1999) 2 SCC 228, held that mother and the father are at par as natural guardians of the minor]

In this backdrop, the Single Bench has ruled,

"there is a strong presumption about a child's welfare to be better secured in the mother's hand, which can be dispelled only by cogent and glaring evidence about the mother's lack of fitness to discharge her maternal obligations."


In the case at hand, the Petitioner-mother, Preeti Rai had approached the High Court through Advocates Vibhu Rai and Abhinav Gaur, seeking custody of her child from the child's father and grandparents.

The petition was opposed by the child's father, Prashant, represented by Advocates Dr. Rajiv Nanda and Manish Kumar Vikki, who argued that a habeas corpus writ petition is not maintainable at the instance of one parent seeking the custody of a child from the other, because the custody cannot be termed unlawful.

Reliance was placed on various Supreme Court decisions, including Punjab National Bank & Ors. v. Atmanand Singh & Ors., (2020) 6 SCC 256.

It was also submitted that the appropriate remedy for the Petitioner would be to institute proceedings seeking custody, under Section 25 of the Guardians and Wards Act, 1890, before the Court of competent jurisdiction.


Principle about alternative remedy not applicable to a writ of habeas corpus

At the outset, the Court discarded the Respondent's plea of maintainability. It held,

"The principle about alternative remedy, in the opinion of this Court, would not be attracted to a writ of habeas corpus. Habeas corpus is about liberty and in its application to a custody dispute, though brought on a cause of action about custody of the child, it is issued on the parameters of welfare."

It further observed that reliance placed by the Respondent on Atmanand Singh case (supra) is of no avail as that decision was rendered in the context of a writ petition, other than habeas corpus.

The Court said,

"Atmanand Singh was a case relating to a writ, other than habeas corpus. It arose out of a dispute between a customer and the Bank about a money claim. The general principle of alternative remedy applicable to all other kinds of writs, would never apply to a writ of habeas corpus."

Also Read: Writ In Nature Of Habeas Corpus Maintainable In Matters Of Child Custody: Madhya Pradesh

When Writ Court may direct parties to avail alternate remedy for custody

The High Court has made it clear that it has the power to ask the parties seeking custody to avail their alternative remedy under the Guardians and Wards Act, where the facts are too complex for a writ court to decide. It observed,

"it is quite another matter that in some cases, the question about the minor's welfare, which a Court seized of a habeas corpus matter may examine, is enmeshed in so much of factual disputations, that it is incapable of resolution in proceedings, decided on affidavits. It is there that parties may be asked to resort to their remedy under the statute."

In this context, the Bench referred to a ruling of the Allahabad High Court in Aisha (Minor) & Anr. v. State of UP & Ors., 2020 SCC OnLine 1129, where it was held that where very intricate questions are involved, the parties may be left free, in the first instance, to go to the Civil Court. This is a question, which is to be seen on the facts of the case, but cannot be utilized to throw out a petition for a writ of habeas corpus in a custody matter between parents at the threshold.

Presumption about child's welfare to be better secured in the mother's hand

As stated above, the Court was of the opinion that there is a strong presumption about a child's welfare to be better secured in the mother's hand.

Reliance was placed on Allahabad High Court's ruling in Aharya Baranwal & Ors. v. State of UP & Ors., where it was held,

"The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate."

Also Read: [Habeas Corpus Writ For Child Custody] Most Significant Consideration Is The Welfare Of The Child, Reiterates SC

The Single Bench in the instant case has clarified that this presumption in the mother's favour can be ruled out only in exceptional circumstances such as (i) demonstrable delinquency, (ii) drug addiction, (iii) conviction in connection with offences involving moral turpitude, coupled with behaviour, etc.

Man can no longer arrogate to himself the exclusive role of the bread winner and to the woman of the home maker

In the facts of the instant case, the child's father, Prashant, had tried to discredit the Petitioner's claim to custody by citing various shortcomings in her motherhood.

However, the Court observed that what Prashant tries to dub as uncaring behaviour of a mother for Preeti, proceeds on a juxtaposition with the model of a mother, who is a home maker.

It observed, "all that has been placed on record about Preeti's engagements in connection with her employment, as evidence about her being an uncaring mother, does not go well with contemporary times."

The Court was of the opinion that if the alleged lapses on Preeti's part while discharging her role as a mother are to be accepted as indicia of maternal neglect, every working mother, who parts ways with her spouse, would have to be condemned as neglectful.

The Bench ruled,

"Office engagement, professional commitments, meetings and some socializing connected to work, come with any meaningful career or pursuit, except a limit of avocations. This is the case, both with a man and a woman. Preeti is a professional in corporate employment, but that does not make her any less a mother.
Contemporary life, with an aspiration for equal participation of men and women, does bring onerous responsibility, both for the man and the woman, and changes too, about the established and accepted patterns of their role in the family, that has hitherto been in vogue for centuries.
The man can no longer arrogate to himself the exclusive role of the bread winner and to the woman of the home maker. Now, it is a sharing of both roles by the spouses - both being working individuals, earning their livelihood."

Overindulgence into child is a possible source of hampering his development

In the instant case, the Court noticed that the child's father and his grandparents were doting father and grandparents to the extent that their affection may become a bane for the child.

"It hardly needs be gainsaid that the welfare of a child consists not only in the care that he is given while young, but the manner he is groomed to become a responsible citizen," the Bench remarked.

It found the overindulgence by the child's father and his grandparents, a possible source of "hampering his development and grooming" him into a young adult.

Further, the Court did not notice anything about the mother's disposition towards her son, which may not auger well for the child's development and overall welfare.

Case Title: Master Advait Sharma v. State of UP & Ors.

Click Here To Download Order

Read Order

Next Story
Share it