9 Nov 2022 2:08 PM GMT
The Punjab and Haryana High Court on Monday, while disposing of a habeas corpus petition filed by a mother alleging illegal detention of her 2 years old child at the hands of her husband and in-laws, held that a mother, even if she is mentally ill, is entitled to the custody of a minor child, especially if the child is below the age of 5 years, unless the mental illness is such...
The Punjab and Haryana High Court on Monday, while disposing of a habeas corpus petition filed by a mother alleging illegal detention of her 2 years old child at the hands of her husband and in-laws, held that a mother, even if she is mentally ill, is entitled to the custody of a minor child, especially if the child is below the age of 5 years, unless the mental illness is such that it shall be detrimental to the health of the child.
"In the case of a mother, especially where the custody concerns a child less than 5 years old, she ought to be granted custody unless she is so mentally or physically incapacitated that handing over custody to her would be physically or mentally detrimental to the health of the child."
The petitioner-mother filed a petition praying for the issuance of the writ of habeas corpus directing the state-respondents to produce her minor child aged less than 2 years, from the 'illegal detention' of the private-respondents being her husband and her in-laws.
The facts which led to the petition were that the petitioner solemnized a marriage with respondent no. 4, out of which wedlock, their son was born. The petitioner alleged that on account of dowry demands, she was mistreated and faced a lot of harassment. On one particular occasion, the petitioner alleged that she was beaten by her husband and his family members.
She also alleged that her sister-in-law gave slaps on her face, after which she was thrown out of her matrimonial home, while retaining the child and depriving him of mother's feed. The petitioner submitted that despite her attempts to take her child along with her, the respondents remained adamant and retained the child, who she argued was retained as a bargaining chip.
The petitioner argued that a writ of habeas corpus was maintainable in this situation as habeas corpus can be issued at the instance of one parent against the other and that in child custody matters, the only relevant consideration was the welfare of the child. Since the welfare of the child was of paramount importance and in the present case as the child was about 2 years old and was on the mother's feed, his custody ought to be handed over to her, argued the petitioner.
It was also contended by the petitioner that as per Section 6 of the Hindu Minority and Guardianship Act, 1956, where the minor child had not completed the age of 5 years, the custody should ordinarily be with the mother.
The petitioner placed reliance on the decisions in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and Others, Writ Petition (Criminal) No.402 of 2021, Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, 2019 (3) R.C.R. (Civil) 104 and on Rashneet Kaur v. State of Haryana and Others, CRWP-3251-2022.
The private respondents, on the other hand, argued that the petitioner suffered from depression, was suicidal, had adjustment disorders and was aggressive, for which she was on medication. They also submitted that the petitioner was fond of late night parties and indulged in drinking alcohol, failed to take adequate care of the child, not giving him proper diet or mother's feed, due to which the child had to be often hospitalised. They further stated the petitioner to be self-abusive and submitted that she suffered from a mental condition even prior to her marriage.
The respondents, therefore, argued that looking at the mental condition of the mother, the welfare of the child lay in the hands of the private respondents. Moreover, they argued that the child had not been 'illegally detained' since the child was in the legal guardianship of his father. Reliance was placed by them on the decision in Poonam Kalsi v. State of Punjab and Others, 2022 (3) R.C.R. (Civil) 262 and Reetu Verma v. State of Haryana and Others, LPA No. 3716 of 2018.
The single bench of Justice Jasjit Singh Bedi, ordered for the custody of the child to be handed over to the mother.
The Court first held that a writ of habeas corpus was maintainable by one parent against another and it was the duty of the Court to ascertain whether the custody of the child was unlawful or illegal and whether the welfare of the child required his present custody should be changed and be handed over to another.
"The question of the interest and welfare of a minor child has to be judged on the consideration of the acknowledged superiority of the mother's love and affection for the children. The lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same. Maternal care and affection is therefore indispensable for the healthy growth of a child," said the Court. Reliance was placed on the decisions in Rajeswari Chandrasekar, Tejaswini Gaud, Rashneet Kaur, Poonam Kalsi and Reetu Verma.
Since the respondents had also argued against the mental condition of the petitioner, the Court referred to Section 21(2) of the Mental Healthcare Act, 2017, which provides for the following:
"A child under the age of three years of a woman receiving care, treatment or rehabilitation at a mental health establishment shall ordinarily not be separated from her during her stay in such establishment: Provided that where the treating Psychiatrist, based on his examination of the woman, and if appropriate, on information provided by others, is of the opinion that there is risk of harm to the child from the woman due to her mental illness or it is in the interest and safety of the child, the child shall be temporarily separated from the woman during her stay at the mental health establishment."
Accordingly, the Court held:
"The entire case of the answering respondent nos. 4 to 6 is that the petitioner is mentally disturbed and therefore having abandoned the child was not entitled to his custody. However, assuming them to be genuine, in terms of the provisions of the Mental Healthcare Act, 2017, even if the petitioner was admitted in an institution for care and rehabilitation, even in such a situation, ordinarily a child under the age of 3 years ought not to be separated from her during her stay in such an institution. In the present case, firstly, the petitioner is not staying at any mental health establishment where she is receiving care or treatment. On the contrary, she is working with a multinational company. Therefore, there can be no justifiable reason to deny her the custody of the child who is barely 2 years and 3 months old. In fact, denial of custody to the petitioner who is the natural and biological mother of the child would be detrimental to the mental health of not only the child but the mother as well."
Case Title: Mansi v. State of Punjab and Others
Citation: CRWP-7332-2022 (O&M)
Coram: Justice Jasjit Singh Bedi
Citation: 2022 LiveLaw (PH) 290
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