Punjab and Haryana High Court upholds mother's custody of child: ‘minor's welfare would reign supreme'
The Punjab and Haryana High Court stressed the child's wishes in an ongoing custody dispute between his parents.
The Punjab and Haryana High Court recently dismissed a petition seeking a writ of habeas corpus to secure the release of a 12-year-old boy from the alleged illegal custody of his mother, and upheld her custody, emphasising the child's welfare and his ability to express a rational preference at his age.
The petition, filed by the child's uncle, claimed the mother had unlawfully taken the child from his habitual residence while his father was on a business trip abroad. The dispute arose from a strained family situation, with a guardianship petition already pending before a family court in Gurgaon between the child's parents.
The child's uncle said that when his father was away, on April 24, the mother allegedly entered his office, took the child's passport, and removed him from his home in the early hours. The petitioner argued that she intended to take the child to Australia, where she resides, without consent, prompting the habeas corpus plea.
However, the mother countered that the child had contacted her in distress, pleading for her to take him away after being left with a house help during his father's absence. She said she flew from Australia to comfort her son, asserting her rights as a natural guardian. Evidence, including call logs and messages, supported her claim that the child had asked her to book tickets.
Justice Brar based his decision on the legal recognition of both parents as natural guardians under Section 6 of the Hindu Minority and Guardianship Act, 1956, and ruled out any basis for kidnapping charges. 'A parent cannot be implicated for kidnapping their own child as both the parents are their equal natural guardians,' said Justice Brar, clarifying that the mother's actions did not amount to illegal detention.
The court referenced Supreme Court precedents like Tejaswini Gaud vs Shekhar Jagdisg Prasad Tewari (2019) and Rosy Jacob vs Jacob A Chakramakkal (1973).
'Welfare of the minor would reign supreme while deciding upon the matter of his custody,' Justice Brar said, highlighting that the child's best interests take precedence.
Given the child's age, the court acknowledged his ability to form a reasoned opinion about his circumstances. 'It would be just and prudent for this Court to take into account the wishes and well-being of the detenu, who is 12 years old, and capable of forming a rational opinion about his living situation,' The judgment noted.
With the guardianship case still pending, the court declined to interfere, leaving the issue to be resolved through the ongoing legal process.
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