'Love Of Father Cannot Be Better Than Mother's Love': Punjab & Haryana High Court Directs Father To Hand Over Custody Of 2 Yr-Old To Mother

Observing that "love of father cannot be better in any manner from mother's love", the Punjab & Haryana High Court has directed to hand over the custody of 2-year-old son to his mother, who was allegedly detained by his father from his mother's residence.

Justice Gurbir Singh said, "A mother's love is the very definition of sacrifice and dedication. At the age of 2 1⁄2 years, the bondage between child and mother is more than bondage with the father. Although feelings of father towards his child are always strong but those cannot be more than the feelings of mother at this tender age. A child who does not get mother's love may be unaffectionate and uncaring in his life. For becoming healthy citizen, it is necessary that one must have love for family, for humanity and also for his friends which is only possible if child at tender age gets love of mother. At such a tender age, there is no substitute for mother's love." 

The welfare of such a child who is less than five years old is in the custody of the mother, unless there is exceptional circumstance to show otherwise, the Court further added.

These observations were made while hearing a habeas corpus plea moved by a mother alleging that his 2.5-year-old son was allegedly illegally detained by his father from her residence.

It was stated that the woman was harassed by his husband and in-laws and hence she left her matrimonial house in May along with their 2-year-old son and started living at her parent's home.

On June 26, her minor son was found missing from her parental home and on checking the CCTV footage, it was seen that husband in connivance with his sister, while covering their faces, picked up the minor son, illegally from the custody of the mother, on a scooter bearing, the petitioner submitted.

An FIR was lodged against the husband for kidnapping the son under Section 365 IPC.  It was further submitted that the husband filed the anticipatory bail plea wherein it was admitted by him that the minor child was in his custody.

By order dated 29.06.2024, he was granted anticipatory bail and directed to join the investigation. Pursuant to the said order, he joined the investigation but refused to hand over the custody of the minor child to the petitioner.

Counsel for the petitioner argued that as per Section 6 of Hindu Minority and Guardianship Act, 1956, the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother.

Counsel appearing for the husband argued that she was having an extra-marital affair in her office and when their son was 5 months old she resumed working and the child was fed with substituted milk.

Whenever the child did not feel well, he made appointments with the doctor through online mode and consulted with the doctor from time to time, the husband added.

After hearing the submissions, the Court said, "the law is well settled that a remedy of the writ petition in the nature of habeas corpus is available when the minor is illegally and improperly detained."

Pursuing Section 6 of the Hindu Minority and Guardianship Act, the bench said, "the custody of minor who has not completed the age of 5 years, shall ordinarily be with the mother. Thus there is a presumption that welfare of a child of such tender age should be in the custody of mother but that presumption is rebuttable, which means the father has to disclose cogent reasons that the welfare of the child is jeopardized if the custody is retained by the mother."

The Court noted that, from the entire facts, it is established that the minor child, who was about 2 years 4 months old at that time and now is about 2 years 6 months old, was picked up from the custody of the mother and immediately child came in possession of his father.

"So, no further enquiry is required for coming to the conclusion whether child was in custody of the petitioner- mother or not and how the child came in possession of respondent No.4- father," it added.

"This fact is clearly established that the child, 2 1⁄2 years old, was in custody of the petitioner-mother and the child was illegally taken away and immediately thereafter was found in the custody of respondent No.4-father. 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 cannot be considered as legal," the judge said.

 The Court rejected the contention that the mother was incompetent. 

 "Respondent No.4 (husband) has placed certain documents that he got appointments online for getting the child examined from the doctor from time to time, but generally in normal routine father takes such appointment. In the family, a person who is tech savvy, gets appointment online and makes purchases online and places orders online for delivery of products. It does not mean that mother was not taking care of the child," the judge observed.

 The father, who gets custody of a child of such a tender age, in an unlawful manner, cannot be considered that it is for the welfare of child that child should remain in his custody, said the judge.

In light of the above, the Court directed the police to ensure that the custody of the minor child is handed over by the father to the petitioner-mother immediately in the presence of Chief Judicial Magistrate-cum-Secretary, District Legal Services Authority, Ambala, or any officer deputed by the District and Sessions Judge, Ambala.

While disposing of the plea, the Court also directed the mother to produce the child "on 1st and 3rd Saturday in the ADR Centre, Ambala from 02:00 PM to 03:00 PM."

Mr. Ketan Chopra, Advocate, for the petitioner

Mr. Gurmeet Singh, AAG, Haryana.

Mr. Sanaf Khan, Advocate, for respondents No.4 to 7.

XXXX v. State of Haryana and others

Citation: 2024 LiveLaw (PH) 223

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