A single bench of Justice J.J. Munir passed this order while hearing a Habeas Corpus writ petition filed by Master Advait Sharma. Advait’s parents, Preeti Rai and Prashant Sharma, were married on November 28, 2013. Preeti Rai is an IT Engineer, employed with a multinational. Prashant Sharma is a Sales Manager with a business house. He is currently serving as an Area Manager with Tropicana Juices, a company based at Ghaziabad.
Advait was born of the wedlock of Preeti Rai and Prashant Sharma on July 5, 2017. This petition has been brought by Preeti Rai, on
behalf of Advait, saying that her minor son is in the unlawful custody of his father and grandparents, where from he ought to be relieved and delivered to her.
Preeti Rai approached the High Court through Advocates Vibhu Rai and Abhinav Gaur, seeking custody of her child from the child’s father and grandparents.
Rajiv Nanda, counsel for the respondents, has raised an objection about the maintainability of this Habeas Corpus writ petition. He has submitted that a habeas corpus is not maintainable at the instance of one parent seeking the custody of a child from the other, because the custody cannot be termed unlawful.
He submits that the father is the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and unless it be shown that the minor’s welfare is in jeopardy in the father’s hands, the father’s custody cannot be termed illegal or unlawful.
Nanda submitted that in a situation like the one in hand, the mother’s remedy is to institute proceedings seeking custody, under Section 25 of the Guardians and Wards Act, 1890, before the Court of competent jurisdiction.
Reliance was placed on various Supreme Court decisions, including Punjab National Bank & Ors. v. Atmanand Singh & Ors., (2020) 6 SCC 256.
The Court discarded the respondent’s plea of maintainability. It held, “The principle about alternative remedy, in the opinion of this Court, would not be attracted to a writ of habeas corpus. Habeas corpus is about liberty and in its application to a custody dispute, though brought on a cause of action about custody of the child, it is issued on the parameters of welfare.”
The Court has made it clear that it has the power to ask the parties seeking custody to avail their alternative remedy under the Guardians and Wards Act, where the facts are too complex for a writ Court to decide. It observed, “It is quite another matter that in some cases, the question about the minor’s welfare, which a Court seized of a habeas corpus matter may examine, is enmeshed in so much of factual disputations, that it is incapable of resolution in proceedings, decided on affidavits. It is there that parties may be asked to resort to their remedy under the statute.”
The Court observed that there is a strong presumption about a child’s welfare to be better secured in the mother’s hand.
“It is the precipitate wisdom of generations that a young child’s welfare is better ensured in the hands of the mother than the father, or for that matter, anyone else. It is in keeping with this transcendent experience of mankind that the proviso to Section 6(a) of the [Hindu Minority and Guardianship] Act of 1956 reserves to the mother the right to the child’s custody until the age of five years”, the Court observed.
It must be remarked that even the natural guardianship of a minor under Section 6(a) of the Act of 1956 is now no longer preferentially held by the father. The mother and the father are at par as natural guardians of the minor, in view of the holding of the Supreme Court in Githa Hariharan (Ms) and Another vs. Reserve Bank of India and another, (1999) 2 SCC 228.
In this backdrop, the Court has ruled,
“there is a strong presumption about a child’s welfare to be better secured in the mother’s hand, which can be dispelled only by cogent and glaring evidence about the mother’s lack of fitness to discharge her maternal obligations.”
“Atmanand Singh was a case relating to a writ, other than habeas corpus. It arose out of a dispute between a customer and the Bank about a money claim. The general principle of alternative remedy applicable to all other kinds of writs, would never apply to a writ of habeas corpus.” the Court said,
In the facts of the case, the child’s father, Prashant, had tried to discredit the Petitioner’s claim to custody by citing various shortcomings in her motherhood.
However, the Court observed that what Prashant tries to dub as uncaring behaviour of a mother for Preeti, proceeds on a juxtaposition with the model of a mother, who is a home maker.
It observed, “all that has been placed on record about Preeti’s engagements in connection with her employment, as evidence about her being an uncaring mother, does not go well with contemporary times.
The Court was of the opinion that if the alleged lapses on Preeti’s part while discharging her role as a mother are to be accepted as indicia of maternal neglect, every working mother, who parts ways with her spouse, would have to be condemned as neglectful.
The Bench ruled,
“Office engagement, professional commitments, meetings and some socializing connected to work, come with any meaningful career or pursuit, except a limit of avocations. This is the case, both with a man and a woman. Preeti is a professional in corporate employment, but that does not make her any less a mother. Contemporary life, with an aspiration for equal participation of men and women, does bring onerous responsibility, both for the man and the woman, and changes too, about the established and accepted patterns of their role in the family, that has hitherto been in vogue for centuries. The man can no longer arrogate to himself the exclusive role of the bread winner and to the woman of the home maker. Now, it is a sharing of both roles by the spouses – both being working individuals, earning their livelihood.”
The Court noticed that the child’s father and his grandparents were doting father and grandparents to the extent that their affection may become a bane for the child.
“It hardly needs to be gainsaid that the welfare of a child consists not only in the care that he is given while young, but the manner he is groomed to become a responsible citizen,” the Bench stated.