Punjab and Haryana HC directs father to hand over minor son’s custody to mother |SCC Times

Punjab and Haryana High Court: In a petition filed by the minor child’s mother under Article 226 of the Constitution for release of her son, aged 2.5 years, from the illegal custody of Respondents 4-7, Gurbir Singh, J., stated that a child who did not get mother’s love might be unaffectionate and uncaring in his life. The Court stated that to become a healthy citizen, it was necessary to have love for family, for humanity and for his friends which was only possible if child at tender age gets love of mother. Love of father could not be better in any manner from mother’s love. Welfare of such a child who was less than five years was in the custody of mother, unless there was exceptional circumstance to show otherwise.

Background

In the present case, the minor son was born on 26-02-2022. Mother alleged that she was being harassed by her in-laws, i.e. Respondent 4-7 and mercilessly beaten up by Respondent 4 (‘child’s father’). Thus, to save her matrimonial home and for the betterment of her child, the mother kept bearing all the sufferings given by the private respondents. On 19-05-2024, the child’s father threw the mother out of home with the minor child. Thereafter, the mother went to her parental home and since then, she was residing there along with her minor son.

It was also pleaded that the father was habitual of living in adultery and the mother had even caught him chatting on mobile phone with a prostitute. When the mother confronted about illicit relations, she was thrown out of the matrimonial home. She filed a case under the Protection of Women from Domestic Violence Act, 2005 and another case under Section 125 of Criminal Procedure Code, 1973 ¹ for claiming maintenance. Thereafter, the father started pressurizing to claim the custody of the minor son.

On 26-06-2024, the minor child was picked up and taken away by two persons. The entire incident was recorded in the CCTV footage. On the same day, the mother filed the FIR under Section 365 of the Penal Code, 1860 ² against her husband and his sister. Although police failed to locate the minor child despite visiting the house of the father and his maternal uncle, but the father filed an application for grant of anticipatory bail. The Additional Sessions Judge, Ambala, vide order dated 29-06-2024, granted interim bail to the father, and in the said order, the father had referred copy of an e-mail sent to the police, wherein it was clearly intimated that the minor child was in his safe and sound custody.

Analysis, Law, and Decision

The Court stated that the law was well settled that a habeas corpus petition was available when minor was illegally and improperly detained. The Court stated that from the entire facts, it was established that the minor child, who was about two years four months old at that time, was picked up from the mother’s custody and immediately the child came in possession of his father. Thus, this fact that the child was illegally taken away and thereafter found in the father’s custody was clearly established. Since there was no order passed by any court for handing over the custody of the child to the father, so custody of the minor child at this tender age by the father could not be considered as legal.

The Court noted that the father had placed certain documents that he got appointments online for getting the child examined from time to time, but generally in normal routine, father takes such appointment. The Court stated that in a family, a person who is a tech savy, gets appointment online and makes purchases online and places orders online for delivery of products. It did not mean that mother was not taking care of the child. The father had failed to establish that the mother was not suitable to take care of the child. The father, who gets custody of a child of such a tender age, in an unlawful manner, could not be considered that it was for the welfare of child that child should remain in his custody.

The Court stated that a mother’s love was the very definition of sacrifice and dedication. At the age of two and a half years old, the bond between the child and the mother was more than the bond with father. Although feelings of father towards his child were always strong, but those could not be more than the feelings of mother. A child who did not get mother’s love might be unaffectionate and uncaring in his life. The Court stated that to become a healthy citizen, it was necessary to have love for family, for humanity and for his friends which was only possible if child at tender age gets love of mother. Love of father could not be better in any manner from mother’s love. Welfare of such a child who was less than five years was in the custody of mother, unless there was exceptional circumstance to show otherwise.

Thus, the Court allowed the present petition and directed Respondents 2 and 3 to ensure that the minor child’s custody was handed over by the father to the mother immediately, in the presence of the Chief Judicial Magistrate-cum-Secretary, District Legal Services Authority, Ambala, or any officer deputed by the District and Sessions Judge, Ambala, for this purpose. The Court stated that the father should produce the minor child at 10:00 AM on 30-08-2024 in the Alternative Dispute Resolution Centre (‘ADR Centre’), Ambala, for compliance of this order. Further, the mother should allow the father to meet the child on first and third Saturday in the ADR Centre, Ambala 02:00 PM to 03:00 PM.

[Anju Sharma v. State of Haryana, 2024 SCC OnLine P&H 9626, decided on 27-08-2024]

Advocates who appeared in this case:

For the Petitioner: Ketan Chopra, Advocate;

For the Respondents: Gurmeet Singh, AAG, Haryana; Sanaf Khan, Advocate.

1. Corresponding Section 144 of Nagarik Suraksha Sanhita, 2023

2. Corresponding Section 140(3) of Nyaya Sanhita, 2023