Custody battle in Punjab and Haryana excessive courtroom: ‘Mom’s lap a pure cradle the place little one’s security, welfare will be assured’

The Punjab and Haryana High Court has directed the handing over custody of a five-year-old girl to her mother, observing that “lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitutes for the same”.

During argument in the case, the girl’s father (husband of petitioner woman) had contended that the minor child refused to go with the mother in the recent past.

The woman had filed a habeas corpus petition in the HC seeking custody of the minor child from her in-laws and husband.

The couple in question got married in 2013 at Kurukshetra, Haryana, and after which they moved to Australia. In 2017, they became parents of a baby girl. In 2020, the woman’s in-laws brought the minor child along with them to India. The girl’s mother was to visit India soon thereafter. But because of Covid travel restrictions, her plan went awry. She was stranded in Australia and could not visit India in 2020 and 2021. She came to India only in 2022 after a gap of two years.

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According to the woman, when she came to India, she was subjected to domestic violence and maltreatment at the hands of her in-laws. She then decided to move to her parents’ place, but her in-laws did not allow her to take her daughter along with her.

The woman then lodged a formal police complaint seeking the release of her daughter from the ‘forcible’ custody of her in-laws. But her in-laws did not appear before the police, following which she filed a case in the high court.

After the hearing of the matter, the bench of Justice Jasjit Singh Bedi said, “It is apparent that the paramount consideration ought to be the welfare of the child and due weight should be given to the child’s comfort, contentment, health, education, intellectual development … The question of the welfare and interest of a minor child has to be judged on the consideration of the acknowledged superiority of the mother’s love and affection for her children. The lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same. No amount of wealth or mother-like love can substitute for a mother’s love and care and, therefore, maternal care and affection is indispensable for the healthy growth of a child.”

On the contention of the father that the child had refused to go with the petitioner (mother) at the time when the petitioner left for her parental home in
March 2022, Justice Bedi said, “I may point out here that even if the statement of the father is taken as the truth that the child had refused to go with the mother, that by itself does not have any significance as a child of such tender age does not know what is in her best interest. It may be reiterated that the child had not met her mother from January 2020 to March 2022. Apparently, for the reasons beyond her control the petitioner was unable to come back to India.”
Justice Bedi added, “The minor girl may have developed a bond with respondent nos.7 and 8 (grandparents) with whom she is residing for the last more than two years because of which she might have stated that she does not wish to go with her mother. However, in the long term for the benefit and welfare of the child, by no stretch of imagination can it be said that the welfare of the child would be better taken care of by the grandparents vis-a-vis the mother. Even otherwise, in the case of child who is less than five years old (which is the case here), the custody should ordinarily be with the mother.”

The HC said that so far as the question of sharing the custody of the child is concerned, the mother is a resident of Australia and so is the father. The grandparents of the child are residents of India, and, therefore, the statement of the father that the petitioner and grandparents could share custody is illogical and unreasonable and cannot be accepted. Issues of education of the child, her health, etc., would arise and these are best dealt with by the mother unless it is shown that the mother is completely incapable of maintaining the child.

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