A Habeas Corpus writ petition was filed by the mother of an 8-year-old to release her daughter who was in unlawful and illegal custody of the mother’s second husband and his family. The Court, declined mother’s plea, observing that an eight-year-old minor child is old enough to form an intelligent preference as to with whom she wants to stay.
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Chandigarh: The Punjab and Haryana High Court has declined a mother’s plea for the custody of her eight-year-old daughter, emphasizing the child’s capacity to make an informed preference regarding her living arrangements. The case, involved a Habeas Corpus writ petition filed by the mother, who alleged that her daughter was unlawfully detained by her second husband and his family.
The child, born from the mother’s first marriage, had been legally granted to her custody following a mutual divorce with her first husband. However, after remarrying, the mother accused her current husband and his family of illegally detaining the minor girl.
Justice Deepak Gupta, presiding over the case, noted,
“No doubt that in this case also, the private respondents are not the lawful guardians of the minor… whereas the petitioner being the real mother is the natural guardian, but at the same time, the court cannot ignore the fact that the minor is now aged 8 years, who is strongly attached to respondent No.7 and has flatly refused to accompany her mother-petitioner to the extent that when this Court directed handing over the custody of the child to petitioner-mother, the minor started crying loudly in the Court and later on also expressed before this Court her clear intention that she wanted to accompany respondent No.7 and not the mother.”
The mother’s representation, led by Advocate Vipan Kumar Sharma, argued that her daughter was being mistreated and treated as a servant by her second husband’s family, who were also failing to provide basic needs. Contrarily, the daughter asserted that her mother did not take proper care of her and her sister, often leaving them locked in separate rooms without food.
The High Court referred to the Supreme Court’s decision in Nil Ratan Kundu & Anr v. Abhijit Kundu, 2008, which states that in custody cases, the child’s welfare and well-being are of paramount importance, and the court is not strictly bound by statutes, rules of evidence, procedure, or precedents.
Applying this legal position, the High Court concluded that the child, being over 8 years old, is capable of forming an intelligent preference regarding her custodial parent.
The Court stated,
“This Court cannot ignore the wishes as expressed by the child.”
However, acknowledging the mother’s role, the Court directed that she be allowed to meet her daughter daily between 10:00 AM to 06:00 PM, clarifying that this order does not declare any of the private respondents as the lawful guardians of the minor.
Ultimately, the custody of the child was directed to remain with the second husband and his family, and the High Court dismissed the writ petition. This judgment underscores the legal principle that in matters of child custody, the child’s preference and welfare are crucial considerations.
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