Child Of Tender Age Has Fundamental Right To Love Of Both Parents: Punjab & Haryana HC Directs Father To Handover Infant To Mother, Grants Visitation

The Punjab and Haryana High Court directed a father to handover custody of 8-month-old child to the mother and allowed visitation rights to his father, observing that, " child's welfare and best interest also includes ensuring that the child is not deprived of the affection and company of the father."

Justice Kirti Singh said, "When the parents are in conflict, the child's well-being should remain the paramount concern. The Court must ensure that the child is not treated as an object to be passed back and forth but rather a person whose stability and security must carefully be protected."

The Court added that a child, especially at a tender age, has a fundamental right to the love, care and protection of both parents. "This is not only essential for the child's emotional and psychological development but is also recognized as a basic human right."

Adding a word of caution, the judge said that, "the Court must exercise caution in assessing the claims made by each parent free from any kind of bias and motive and must focus on the child's best interest."

The goal of the Court should be to cut through the conflict and to assess a suitable environment where the child's overall well-being is safeguarded, said the judge.

These observations were made while hearing a habeas corpus plea filed a mother seeking alleged illegal custody of her 8-months-old child from father.

It was alleged by the mother that on account of marital discord, the mother was severely beaten and while leaving for her parental home was allowed to take the child with her.

The plea submitted that the woman along with her parents had approached the local police along with a copy of the MLR and had requested that the custody of the child be taken from the husband and handed over to the petitioner who was being nursed by the mother. However, no police assistance was provided to the petitioner.

After hearing the submissions, the Court noted that, the parties have not been able to work out any amicable settlement regarding custody of their son through the Mediation & Conciliation Centre.

Reliance was placed on Apex Court's decision in Yashita Sahu Vs. State of Rajashtan and others 2020 (3) SCC 67 to underscore that, "a writ of Habeas Corpus can be maintained for the custody of a child when the child is in custody of one parent, especially, if it is in the child's best interest."

Justice Singh highlighted that the primary and paramount consideration is always with the child's best interest which encompasses his/her physical and psychological well-being.

"In custody battles the children often become the unintended victim of their parents' conflict. When the dispute becomes highly acrimonious, each parent may portray the other in negative right, sometimes marginally or by misrepresenting the facts to gain advantage," the Court observed.

The Court added that the adverse approach can create significant emotional and psychological concern of the child who is caught in the middle of the conflict. "The main aim is to minimize disruption to the child's life and to ensure continuity with both parents unless there are compelling reasons such as evidence of abuse or severe neglect to limit or deny the contact of one parent," it opined.

In the light of the above, the Court opined that the child is of a tender age of 08 months, this Court is of the considered opinion that till a decision is taken by the competent Court, the custody of the child shall remain with the petitioner-mother.

However it directed the mother to allow access to the child at her parental home "ensuring that the child is not deprived of the affection and company of the father."\

Mr. Vipin Mahajan, Advocate, for the petitioner.

Mr. R.S. Thind, DAG, Punjab.

Mr. Nikhil Ghai, Advocate, for respondent No.4.

Title: XXXX v. State of Punjab and others

 Citation: 2024 LiveLaw (PH) 253

Click here to read/download the order