Mother can invoke habeas corpus for child’s custody: HC
UNDER HABEAS CORPUS, HC AND SC CAN ORDER DETAINER TO PRODUCE THE DETENU IN COURT AND PROVIDE VALID REASON FOR THE DENTITION
CHANDIGARH : The Punjab and Haryana high court has said that a mother can invoke extraordinary remedy of habeas corpus for the custody of her children below five years of age, in case the child is forcibly taken away by her estranged husband.
The high court bench of justice Jaishree Thakur said that the habeas corpus would be an efficacious remedy, keeping in mind the reality of the delay that would occur, while alternative remedy of filing application under the Guardian and Wards Act or Hindu Minority and Guardianship Act.
Section 6 (a) of the Hindu Minority and Guardianship Act provides that custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
It further said that while appointing a natural guardian, the ‘Welfare of the Child’ is of paramount importance for the court. The term has a wide connotation and cannot be limited to fulfilling the financial needs only. “A minor child not only needs a roof over his head and food on his table, but requires emotional sustenance as well. A safe environment, full of love and nurturing care is always conducive to the overall development of a tender mind and that is why the legislature in its wisdom provided for custody of a minor under the age of 5 to be ordinarily with his/her mother,” the bench said.
Under habeas corpus, high court and apex court can order detainer to produce the detenu in court and provide valid reason for the dentition. It provides swift and effective remedy against unlawful detention. The consequence of successful challenge to an unlawful dentition is immediate release of the detenu.
The court was dealing with the plea of a woman from Ludhiana, who had approached high court on December 2, 2020 through a habeas corpus petition seeking custody of her 4 –year- old son from the custody of her estranged husband.
The husband had argued that he is the natural guardian being the father and has every right to the custody of the minor child.
It was also argued that habeas corpus would not be maintainable in the case in hand and that she can approach guardian judge to decide the question of custody of the minor child.
The court further added that the minor son should ordinarily be in the custody of the mother as stipulated guardianship law, unless the husband is able to establish that she is unfit to do so.
The court asked the husband to hand over custody of the child to the woman adding that if he does not hand over the minor, she can approach local Station House Officer to seek help for restoration of the custody. The court, however, clarified that the husband can avail remedy of the family court for custody of the minor. But until such time an application for interim custody of the child is decided, the custody will remain with the mother.