HC: No amount of wealth can take place of mother’s love

HC: No amount of wealth can take place of mother’s love

Court Restores Custody Of Minor To Mom

Ajay.Sura@timesgroup.com

Chandigarh: 11.11.2020 

While holding the habeas corpus petition filed by a woman seeking custody of her child, who is aged under 5 years old as maintainable, the Punjab and Haryana high court observed that “no amount of wealth or mother-like love can take the place of mother’s love and care”. The HC also observed that the mother’s protection for the infant is indispensable and no other protection will be equal in measure and substance to the same.

“A writ of habeas corpus is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child, irrespective of legal rights of the parents,” observed the HC.

Justice Arun Kumar Tyagi of the HC passed these orders while restoring the custody of a three-and-half-yearold girl to her mother. Amid the matrimonial dispute between the Bathinda-based couple, the child was taken away by husband in November 2019. While upholding the right of the mother over her minor child, Justice Arun Kumar Tyagi also observed, “In the present case, the question of welfare and interest of the minor daughter has to be judged on the consideration of universally acknowledged superiority of the mother’s instinctive selfless love and affection of her children, particularly the infants. The lap of the mother is the natural cradle where the safety and welfare of the infant can be assured and there is no substitute for the same.... Motherly care and affection is indispensable for the healthy growth of the infants.”

Divjyot S Sandhu, the wife’s counsel, had argued that in view of Section 6(a) of the Hindu Maintenance and Guardianship (HMG) Act, the petitioner is entitled to the custody of her daughter. Sandhu also submitted that due to her tender age, custody of the child with her father is not lawful/proper.

Counsel for the husband, however, argued that his custody of the minor child, being a natural guardian under Section 6 of the HMG Act, is not illegal. Submitting that the habeas corpus petition is not maintainable in such matters, the counsel said the wife has an equally efficacious remedy of filing petition under the HMG Act/the GW Act for custody of the minor child.

After hearing both the parties, the HC, in its order released on Monday evening, ordered the father to restore the girl’s custody to her mother by November 15. The HC, however, has allowed the father once-a-week visiting rights.

While pointing out that the father’s custody of the minor daughter cannot be said to be illegal, the HC was of the view that “there was no valid ground to deny interim custody of the minor daughter who is aged less than five years old, to the mother, as it is in fact essential to the welfare and in the best interest of the minor daughter” and also as per the statutory right conferred by Section 6(a) of the Hindu Maintenance and Guardianship Act.

ESSENTIAL FOR HER WELFARE

While pointing out that the father’s custody of the minor daughter cannot be said to be illegal, the HC was of the view that "there was no valid ground to deny interim custody of the minor daughter who is aged less than five years old, to the mother, as it is in fact essential to the welfare and in the best interest of the minor daughter"