The Punjab and Haryana High Court in its order dated November 07, 2022 disposed off a habeas corpus petition filed by a mother alleging illegal detention of her 2 years old child by her husband and in-laws.
The High Court held that even if a mother is mentally ill, she is entitled to the custody of a minor child, especially if the child is below the age of 5-years of age.
Case:
Parties got married in December 2017 and a boy child was born to them in August 2020. The wife accused her husband and in-laws of dowry harassment and physical cruelty for which she has filed an FIR in July 2022.
Since the minor child remained in the custody of the husband and her in-laws, the mother filed a petition praying for the issuance of the writ of habeas corpus directing the state-respondents to produce her son aged less than 2 years, from the ‘illegal detention’ of the private-respondents being her husband and her in-laws.
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Allegations by Mother
The petitioner-mother alleged that her sister-in-law slapped her repeatedly, after which she was thrown out of her matrimonial home, while retaining the child and depriving him of mother’s feed. The petitioner also 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.
The woman argued that since the welfare of the child was of paramount importance and in the present case as the child was about 2-years-old and was on the mother’s feed, his custody ought to be handed over to her, argued the petitioner.
Defense by Husband, In-Laws
The husband and in-laws, respondents in the case on the other hand said that the petitioner suffered from depression, was suicidal, had adjustment disorders and was aggressive, for which she was on medication. They also submitted that the petitioner was fond of late night parties and indulged in drinking alcohol, failed to take adequate care of the child, not giving him proper diet or mother’s feed, due to which the child had to be often hospitalised. They further stated the petitioner to be self-abusive and submitted that she suffered from a mental condition even prior to her marriage.
The respondents, therefore, argued that looking at the mental condition of the mother, the welfare of the child lay in the hands of the private respondents. Moreover, they argued that the child had not been ‘illegally detained’ since the child was in the legal guardianship of his father.
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Punjab & Haryana High Court
Going through the arguments on record, the single bench of Justice Jasjit Singh Bedi, ordered for the custody of the child to be handed over to the mother. Justice Bedi said,
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.
Whether Child Was in Unlawful Custody of Father
The Court first held that a writ of habeas corpus was maintainable by one parent against another and it was the duty of the Court to ascertain whether the custody of the child was unlawful or illegal and whether the welfare of the child required his present custody should be changed and be handed over to another. The Court thus remarked,
The question of the interest and welfare of a minor child has to be judged on the consideration of the acknowledged superiority of the mother’s love and affection for the children.
The lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same. Maternal care and affection is therefore indispensable for the healthy growth of a child.
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Whether Child Will Be Safe With Unsound Mother
The Court also referred to the arguments of the mental condition put forth by the husband and in-laws. Referring to Section 21(2) of the Mental Healthcare Act, 2017, the High Court stated,
A child under the age of three years of a woman receiving care, treatment or rehabilitation at a mental health establishment shall ordinarily not be separated from her during her stay in such establishment.
Provided that where 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, the child shall be temporarily separated from the woman during her stay at the mental health establishment.
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The Court also added,
The entire case of the answering respondents is that the petitioner is mentally disturbed and therefore having abandoned the child was not entitled to his custody. However, assuming them to be genuine, in terms of the provisions of the Mental Healthcare Act, 2017, even if the petitioner was admitted in an institution for care and rehabilitation, even in such a situation, ordinarily a child under the age of 3 years ought not to be separated from her during her stay in such an institution.
In the present case, firstly, the petitioner is not staying at any mental health establishment where she is receiving care or treatment.
On the contrary, she is working with a multinational company. Therefore, there can be no justifiable reason to deny her the custody of the child who is barely 2 years and 3 months old. In fact, denial of custody to the petitioner who is the natural and biological mother of the child would be detrimental to the mental health of not only the child but the mother as well.
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