The Allahabad High Court on Friday approved the habeas corpus petition of a mother seeking custody of her three and a half year old child from her husband (the child’s father).

A Single Bank of Justice JJ Munir stated that there is a strong presumption that a child’s well-being could be better secured in the hands of the mother.

It watched

“It has been the precision wisdom of generations that the well-being of a young child is better assured in the hands of the mother than of the father or anyone else. It is in keeping with this transcendent experience of humanity that the reservation on section 6 (a) of [Hindu Minority and Guardianship] The 1956 law allows the mother to have custody of the child up to the age of five. “

Section 6 sets out the rule that custody of a minor under the age of five should normally be with the mother, even though the father is the natural guardian.

[Note: Supreme Court in Githa Hariharan (Ms) & Anr. v. Reserve Bank of India & Anr., (1999) 2 SCC 228, held that mother and the father are at par as natural guardians of the minor]

Against this background, the individual bank decided:

“There is a strong presumption that a child’s well-being can be better secured in the hands of the mother, which can only be remedied by conclusive and blatant evidence of the mother’s ineptitude to meet her maternal responsibilities.”

background

In the present case, the petitioner’s mother, Preeti Rai, went to the High Court through lawyers Vibhu Rai and Abhinav Gaur and asked the child’s father and grandparents to have custody of her child.

The petition was represented by the child’s father, Prashant, represented by lawyers Dr. Rajiv Nanda and Manish Kumar Vikki, who argued that a habeas corpus petition cannot be sustained if one parent seeks custody of a child from the other. because custody cannot be called illegal.

Various rulings by the Supreme Court, including the Punjab National Bank & Ors, have been trusted. v. Atmanand Singh & Ors., (2020) 6 SCC 256.

It was also argued that the appropriate remedy for the petitioner was to initiate custody proceedings under Section 25 of the Guardians and Wards Act of 1890 in the competent court.

Results

Alternative medicine policy that does not apply to a habeas corpus charter

At the beginning, the court rejected the defendant’s plea for maintainability. It held

“The principle of alternative remedy would not, in the opinion of the Court, be attracted by a habeas corpus letter. Habeas corpus is about freedom and its application to a custody battle, although it has a plea for custody of the child it is being referred to Parameters of welfare issued. ”

It also found that the Respondent’s confidence in the Atmanand Singh case (see above) is unsuccessful, as this decision was taken under a written petition other than Habeas Corpus.

The court said:

“Atmanand Singh was a case relating to a letter other than Habeas Corpus. It arose out of a dispute between a customer and the bank over a monetary claim. The general principle of alternative remedy that applies to all other types of letters would never apply to a letter from Habeas Corpus. “

Also Read: Written In The Nature Of Habeas Corpus Sustained In Custody: Madhya Pradesh

When Writ Court can direct the parties to seek alternative remedies for custody

The High Court has made it clear that it has the power to request custody parties to seek alternative remedies under the Guardians and Wards Act when the facts are too complex for a written court to rule. It watched

“It is an entirely different matter that in some cases the minor’s welfare issue, which a court dealing with a habeas corpus matter may consider, is caught up in so many factual disputes that it is not involved in Affidavits can be decided in a procedure. There, the parties can be asked to appeal to their legal remedies. “

In this regard, the bank referred to a judgment of the Allahabad High Court in Aisha (Minor) & Anr. v. State of UP & Ors., 2020 SCC OnLine 1129, where it was found that in the case of very complicated questions, the parties can initially be free to turn to the civil court. This is a question that arises from the facts, but cannot be used to file a habeas corpus motion in a custody matter between parents on the threshold.

Assumption that the child’s welfare is better in the hands of the mother

As stated above, the Court found that there was a strong presumption that the welfare of a child could be better secured in the hands of the mother.

The judgment of the Allahabad High Court in Aharya Baranwal & Ors has been found to be trustworthy. v. State of UP & Ors., Where it took place,

“The tender age and precarious state of health make the mother’s vigilance indispensable for her adequate care; for no doubt fatherly fear would seek and receive the best substitute that could be procured, but every instinct of mankind purposefully proclaims that no substitute can be made to supply the place of her whose vigilance about the sleeping cradle or moments of wakefulness of her offspring is triggered by a deeper and holier feeling than the most liberal nurse’s wage allowance could possibly stimulate. “

Also read: [Habeas Corpus Writ For Child Custody] The most important consideration is the child’s well-being, SC affirms

The individual bank in the present case has made it clear that this presumption in favor of the mother can only be excluded in exceptional cases, such as B. (i) demonstrable crime, (ii) drug addiction, (iii) conviction related to crimes involving moral injustice coupled with behavior, etc.

The man can no longer reproach himself for the exclusive role of the bread winner and the wife of the handyman

In the facts of the present case, the child’s father, Prashant, attempted to discredit the petitioner’s custody claim by citing various deficiencies in her motherhood.

The court found, however, that what Prashant tried to label Preeti as loveless behavior by a mother is contrasted with the model of a mother who is a do-it-yourselfer.

It noted, “Everything that has been recorded about Preeti’s engagements in connection with her employment as evidence that she is a loveless mother does not fit well with our times.”

The Court held that any working mother separating from her spouse would have to be convicted of negligence if Preeti’s alleged failures in fulfilling her role as a mother were to be recognized as indicative of maternal neglect.

The bank ruled

“Office engagement, work commitments, meetings and some work-related contacts are associated with any significant career or occupation, with the exception of a job limitation. This is the case for both a man and a woman. Preeti is a professional in the field Corporate employment – but that doesn’t make her less of a mother.
Contemporary life with the pursuit of equal participation of men and women brings burdensome responsibility for both men and women and also changes the established and accepted patterns of their role in the family that have been in vogue for centuries.
The The man can no longer reproach himself for the exclusive role of the bread winner and the wife of the handyman. Now the spouses share both roles – both working individuals and making a living. ”

Excessive indulgence by the child is a possible source that hinders their development

In the present case, the court found that the child’s father and grandparents were so fond of the father and grandparents that their affection could become a curse on the child.

“Needless to say, a child’s well-being is not just about the care they receive at a young age, but also the way they are cared for to become a responsible citizen,” the bank noted .

It found that the child’s father and grandparents were overly indulgent, a potential source to hinder his development and turn him into a young adult.

In addition, the Court made no observations about the mother’s attitude towards her son, which may not have a positive effect on the child’s development and general well-being.

Case Title: Master Advait Sharma vs. State of UP & Ors.

Click here to download the order

Read order