Savvy Thakur
Published on: November 10, 2022 at 21:17 IST
The Punjab and Haryana High Court on Monday, while disposing of a habeas corpus petition filed by a mother alleging illegal detention of her 2 years old child at the hands of her husband and in-laws.
The court held that a mother, even if she is mentally ill, is entitled to the custody of a minor child, especially if the child is below the age of 5 years, unless the mental illness is such that it shall be detrimental to the health of the child.
“In the case of a mother, especially where the custody concerns a child less than 5 years old, she ought to be granted custody unless she is so mentally or physically incapacitated that handing over custody to her would be physically or mentally detrimental to the health of the child.”
The petitioner-mother filed a petition praying for the issuance of the writ of habeas corpus directing the state-respondents to produce her minor child aged less than 2 years, from the ‘illegal detention’ of the private-respondents being her husband and her in-laws.
The petition was prompted by the fact that the petitioner married the respondent no. 4, which resulted in the birth of their son.
The petitioner alleged that on account of dowry demands, she was mistreated and faced a lot of harassment.
The petitioner claimed that she had been beaten by her husband and his family on one occasion.
She also alleged that her sister-in-law gave slaps on her face, after which she was thrown out of her matrimonial home, while retaining the child and depriving him of mother’s feed.
The petitioner submitted that despite her attempts to take her child along with her, the respondents remained adamant and retained the child, who she argued was retained as a bargaining chip.
Because, habeas corpus can be issued at the instance of one parent against the other and because the only relevant consideration in child custody matters is the welfare of the child, the petitioner argued that a writ of habeas corpus was maintainable in this circumstance.
The petitioner argued that custody should be granted to the mother because the child’s well-being was of the utmost importance and because the child in question was approximately two years old and was on her food.
The petitioner also argued that, according to Section 6 of the Hindu Minority and Guardianship Act of 1956, when a minor child is under the age of 5, the mother should typically have custody.
The petitioner cited Rashneet Kaur vs. State of Haryana and Others, Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, and Rajeswari Chandrasekar Ganesh vs. State of Tamil Nadu and Others.
In contrast, the private respondents argued that the petitioner was depressed, suicidal, had adjustment disorders, and was aggressive, all of which she was treated for with medication.
In addition, they argued that the petitioner drank alcohol and enjoyed late-night parties, neglected to provide the child with a nutritious diet and mother’s feed, and required frequent hospitalization as a result.
They also said that the petitioner was abusive to herself and that she had a mental illness even before she got married.
As a result, the respondents argued that, given the mother’s mental state, the private respondents were responsible for the child’s welfare.
In addition, they argued that the child had not been “illegally detained” because he was under his father’s legal guardianship.
They cited Poonam Kalsi vs. State of Punjab and Others and Reetu Verma vs. State of Haryana and Others.
The mother should receive custody of the child, according to the single bench headed by Justice Jasjit Singh Bedi.
The Court first decided that one parent could file a writ of habeas corpus against the other, and it was the Court’s responsibility to determine whether the child’s custody was legal or not, as well as whether the child’s well-being necessitated that his current custody be transferred to another parent.
“The question of a minor child’s interest and welfare must be evaluated in light of the recognized superiority of the mother’s love and affection for the children.”
“There is no substitute for the mother’s lap, which is a natural cradle where the child’s safety and well-being are guaranteed. Therefore, maternal affection and care are essential for a child’s healthy development,” the Court stated.
Decisions made in Rajeswari Chandrasekar, Tejaswini Gaud, Rashneet Kaur, Poonam Kalsi, and Reetu Verma were taken into account.
The Court cited Section 21(2) of the Mental Healthcare Act of 2017, which provides for the following because the respondents had also argued against the petitioner’s mental condition:
“A woman receiving care, treatment, or rehabilitation at a mental health establishment shall not ordinarily be separated from her child under the age of three during her stay in such establishment”
“Provided, however, that the child shall be temporarily separated from the woman during her stay at the mental health establishment “if the treating Psychiatrist, based on his examination of the woman and, if appropriate, on information provided by others, is of the opinion that there is risk of harm to the child from the woman due to her mental illness or it is in the interest and safety of the child.”
As a result, the Court decided:
“The answering respondent’s entire case no.4 to 6 state that the petitioner suffers from mental illness and was not entitled to custody because he abandoned the child.”
“However, assuming they are true, in accordance with the Mental Healthcare Act of 2017, even if the petitioner was admitted to an institution for care and rehabilitation, a child under the age of three should typically not be separated from her during her time there.”
“In the current case, first and foremost, the candidate isn’t remaining at any emotional wellness foundation where she is getting care or treatment. She, on the other hand, is employed by a global corporation. Therefore, denying her custody of the child, who is only two years and three months old, cannot be justified.”
“In point of fact, it would be detrimental to both the mother’s and the child’s mental health to deny custody to the petitioner, who is the child’s natural and biological mother.”