In CRWP-3251-2022-PUNJ HC-Where ordinary remedy of Civil Court in particular case is either not available or ineffective, writ of Habeas Corpus is certainly maintainable in case of illegal custody of minor: P&H HC Justice Jasjit Singh Bedi [13-06-2022]

Read Order: Rashneet Kaur v. State of Haryana & Ors.

Monika Rahar

Chandigarh,June 17,2022: The Punjab and Haryana High Court, while dealing with a custody matter, has held that where in the circumstances of a particular case the ordinary remedy of the Civil Courts is either not available or is ineffective a writ of Habeas Corpus is certainly maintainable, moreso, where it is shown that the detention of the minor child by a parent or others was illegal, without any authority of law and was also to the detriment of the child. 

Further, the Bench of Justice Jasjit Singh Bedi has held, 

“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. No amount of wealth or mother like love can substitute for a mother’s love and care and, therefore, maternal care and affection is indispensable for the healthy growth of a child.”

The Court was dealing with a petition under Article 226 of the Constitution of India filed for the issuance of a Writ in the nature of Habeas Corpus directing the respondents to produce the minor girl child of the petitioner (aged 4-1/2 years) and to handover her custody to the petitioner, who is the mother and natural guardian of the child.

After the marriage of the parties, they immigrated to Australia and after three years

of the wedlock a female child i.e. Avneet Turka was born in 2017. As per the petitioner, in January 2020 her in-laws brought the minor child Avneet Turka along with them to India and petitioner was to visit India soon thereafter. 

However, due to the outbreak of COVID-19 in 2020 followed by the unforeseen and unavoidable circumstances of overseas travel restrictions and suspension of international flights the petitioner got stranded in Australia and could not visit India in 2020 and 2021. 

Thereafter the petitioner came to India after a gap of 02 years and went to the matrimonial where she was allegedly subjected to domestic violence, and as a result she went to her parents’ home. But, she was not allowed to take her daughter with her. 

Thereafter, the petitioner approached the Police and in response, her in-laws were called at the Police Station along with the minor child but the respondents did not produce the child and kept the matter pending on one pretext or the other.

Resultantly, the petitioner went to her matrimonial house where she found out that her in-laws left their house and went to some unknown location with the minor child.

Before the High Court, the petitioner’s counsel argued that the unlawful, illegal and forcible retention of the child by her in-laws itself entitled the petitioner to the relief as prayed for in this petition, moreso when the female child was less than 05 years old and she needed the care, love and attention of the petitioner-mother. 

Further, it was the Counsel’s case that the custody of the minor child was always with the petitioner except for a few occasions in the past and also that the welfare of the child was of paramount importance and, therefore, the custody ought to be handed over to the petitioner.

Reference in this regard was made to Section 6 of the Hindu Minority and Guardianship Act, 1956 to contend that the custody of a girl child less than 05 years of age should ordinarily be with the mother.

After considering these submissions, the Court perused provisions of Section 6 of The Hindu Minority and Guardianship Act, 1956 along with various judgments to observe that in child custody matters, the ordinary remedy lies under the Hindu Minority and Guardianship Act, 1956 and the Guardianship and Wards Act, 1890 as the case may be. 

Further, on the maintainability of the Writ Petition, the Court was of the opinion that where the court is of the view that a detailed inquiry is required the Court may decline to exercise the extraordinary jurisdiction of a Writ Court and direct the parties to approach the Civil Court and that it is only in exceptional cases, where the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction in a petition for Habeas Corpus. 

Thus, Justice Bedi held, 

“where in the circumstances of a particular case the ordinary remedy of the Civil Courts is either not available or is ineffective a writ of Habeas Corpus is certainly maintainable, moreso, where it is shown that the detention of the minor child by a parent or others was illegal, without any authority of law and was also to the detriment of the child.”

Additionally, the Court reiterated that in custody matters, the paramount consideration ought to be the welfare of the child and due weight should be given to the child’s comfort, contentment, health, education, intellectual development, familiar surroundings etc. 

Further, in light of the above, the Court held that 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 and thus no amount of wealth or mother like love can substitute for a mother’s love and care and, therefore, maternal care and affection is indispensable for the healthy growth of a child.

Coming to the present case, the Court opined that when the child left the company of the petitioner she was approximately 2½ years old and spent her growing years in the company of her grandparents. 

Also, negating the argument of the father of the minor to the effect that the child refused to accompany the petitioner when she was goin to her parents’ house, the Court held that even if the statement of the father was taken as the truth, that by itself would not have any significance as a child of such tender age does not know what is in her best interest. 

The Court reiterated that the child did not meet her mother in two years between January 2020 to March 2022 and apparently, for the reasons beyond her control the petitioner was unable to come back to India. 

Thus, against this backdrop, the Court held, 

“… in the long term for the benefit and welfare of the child, by no stretch of imagination can it be said that the welfare of the child would be better taken care of by the grandparents viz-a-viz the mother. Even otherwise, in the case of child who is less than 05 years old (which is the case here) the custody should ordinarily be with the mother.” 

In view of the above discussion, the present petition was allowed.