On September 17th, 2020 when the matter related to custody of Child occurred before the High court at Madhya Pradesh Hon’ble Justice S.A. Dharmadhikari pronounced that the welfare of the child is of paramount importance and for that, it is to be noted that the custody of the child should be given to the one in whose womb the nurturing of the child is done for 9 months.
The petition was filed before the court for seeking the habeas corpus direction to respondents 1 to 5 to produce the corpus Yatharth before the court who is alleged to be in illegal detention of respondents 6 to 8.
Brief Facts of the Case:
It was found that the issue is of a matrimonial dispute arising out between petitioner and respondent 6. The petitioner by means of petition informed the Court that Respondent 6 used to harass and beat the petitioner and demanded a dowry of Rs.5 lakhs from the petitioner.
It was further informed to the court that due to marital issues between the husband and wife respondent 6 had locked the petitioner and took away the minor child Yatharth along with him. The child is 15 months old and has been illegally snatched by the respondent 6/ husband and her in-laws from the custody of the petitioner, who is living with her parents.
On the request made by the petitioner to respondent 6 for handing over the custody of the child to her, the respondent with the help of her parents beat the petitioner and tied her with a rope. For which the petitioner was left with no other option and she filed an FIR.
Issue in Question:
The most important issue raised before the court was, whether the Habeas Corpus petition is maintainable or not in respect of custody of a minor child?
For which the Hon’ble court referred the decision of the Supreme Court in Dushyant Somal v. Sushma Somal (1981) 2 SCC 277 and considered that the high court is of opinion that writ petition for issuance of a writ in nature of Habeas Corpus under Article 226 in the peculiar facts and circumstances of the case is maintainable.
And the court opined that the child has to be in the custody of the mother.
Decision pronounced by the Court:
In the present case, the child is aged about 15 months and this court keeping in view of section 6 of the Hindu marriage and Guardianship ACT 1956 is of opinion that the custody of the child be given to the mother. The Court also pronounced that for the welfare of the child which is paramount important the proper ownership lies in the Mother. As the child had nurtured 9 months in the womb of the mother.
The Court directed the respondent 6 to 8 to handover the custody of the child to the petitioner and allowed the petition.
