Child’s welfare is better ensured in the hands of the mother than the father: Allahabad High Court grants custody of minor to mother

While granting custody of a minor child to his mother, the Allahabad High Court recently observed that mothers are best suited to take care of very young children..Justice J Munir was dealing with a habeas corpus petition filed by the mother Preeti, who submitted before the Court that she is not being allowed to meet her three-year-old son, and that he was under the 'unlawful' custody of her husband/in-laws. She also pointed that soon before she was forced out of the matrimonial home, demands for dowry were made. It was claimed that she was pestered with the demand for a car as dowry..The petitioner submitted that she was a working woman and that the husband had been constantly switching/leaving jobs. In January 2017, the husband left his job, after which the entire financial responsibility to run the household fell on her shoulders.She also claimed that the she was harassed, abused and ill-treated during the period of time that they were together..Counsel for the respondent husband raised an objection that the petitioner did not exhaust existing remedies before approaching the High Court and thus challenged the maintainability of the habeas corpus petition. He submitted that a habeas corpus writ petition is not maintainable at the instance of one parent seeking the custody of a child from the other. It was also contended that the father is the natural guardian of the child under Section 6(a) of the Hindu Minority and Guardianship Act, 1956.It was also contended that the petitioner was a bad wife and a bad mother, and that the welfare of the child - who suffers from health issues - would not be ensured in her hands..While rejecting the contentions of the respondent, the Court observed that the general principle of alternative remedy applicable to all other kinds of writs would never apply to a writ of habeas corpus. "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 order reads..After interacting with the parents and the child, the Court came to the conclusion that the latter was still too young to express a preference for which parent he would like to be with. It went on to note,"This Court can’t help but notice the fact that Prashant and his parents have attempted to prove that Preeti has been an uncaring mother since the day she conceived. If they are to be believed, a case of prenatal neglect and prenatal welfare would have to be examined.".However, the Court eventually placed reliance on Section 6(a) of the Hindu Minority and Guardianship Act, which lays down that notwithstanding the father being the natural guardian, the custody of a minor who has not completed the age of five years, ought ordinarily be with the mother. .On the allegations that the petitioner was an uncaring mother, the Court observed,"To this Court’s understanding, 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. In case, whatever lapses evident, if they can be called that, on Preeti’s part while discharging her role as Advait’s 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......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...".The man can no longer arrogate to himself the exclusive role of the bread winner and to the woman of the home maker.Allahabad High Court.On observing the interactions of the child with his grandparents and with his mother, the Court noted that the overindulgence by the child's father and his grandparents was a possible source of hampering his development and grooming him into a young adult. "To the contrary, this Court did not notice anything about Preeti’s disposition towards her son, which may not auger well for the child’s development and overall welfare.".Having said that, the Court went on to record,"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 Act of 1956 reserves to the mother the right to the child’s custody until the age of five years. The word ‘ordinarily’ predicates a rule about custody of a young child to be entrusted to the mother, but making allowance in exceptional circumstances for the Court to order otherwise. These circumstances could be demonstrable delinquency, drug addiction, conviction in connection with offences involving moral turpitude, coupled with behaviour, that renders the mother unfit.".It was further recognized that the petitioner was an educated woman who is gainfully employed in a multinational corporation, and has the necessary maturity and judgment to raise the minor..The Court, while granting the custody of the child to the mother, directed the Chief Judicial Magistrate, Ghaziabad to cause the minor to be delivered into the custody of his mother. The Court also granted visitation rights to the father..[Read order]