[Habeas Corpus Petition] Mother Who Nurtured Child For 9 Months In Womb Is Certainly Entitled To His Custody: MP HC [Read Order]

While dealing with a Habeas Corpus petition, the Madhya Pradesh High Court (Gwalior Bench) recently observed that the welfare of a child is of paramount importance and that the mother/petitioner, who has nurtured the child for nine months in the womb is certainly entitled to the custody of the child.

A Single Bench of Justice S.A. Dharmadhikari was hearing the plea filed by a mother to seek habeas corpus directions for respondents 1 to 5 to produce the corpus/child Yatharth before the Court. It was alleged that the child is in the illegal detention of respondents 6 to 8.

The Background of the Case

The petitioner/Madhavi/Mother and respondents No. 6 got married on 03/12/2017. The child namely Yatharth was born out of their wedlock on 02/02/2019. The matrimonial dispute between the petitioner (wife) and respondent No. 6 (husband) was going on.

Allegedly, the Husband used to harass his wife and he demanded a dowry of Rs. 5 Lakhs from the petitioner/wife/mother of the corpus.

Allegedly, some altercation took place between them and then respondent No. 6 had locked the petitioner in a room and took away the minor child Yatharth (15 months old) along with him.

On 30/06/2020, when the petitioner requested her husband to hand over the corpus to her, the respondent No. 6/husband beat the petitioner along with her brother and mother and had tied them with rope.

In these circumstances, the petitioner was left with no other option, but to file an FIR bearing Crime No. 84/2020 at police station Sirol, District Gwalior.

Court’s Analysis

While relying on the Judgment of the Apex Court in the case of Capt. Dushyant Somal v. Sushma Somal and another (1981) 2 SCC 277, the High Court concluded that a writ petition for issuance of a writ in nature of Habeas Corpus under article 226 of the Constitution of India in the peculiar facts and circumstances of the case is certainly maintainable.

Otherwise also, the Court noted, keeping in view the welfare of the child and other factors, the court was of the opinion that the child has to be in the custody of mother

The Court noted that in similar circumstances, the co-ordinate Bench of the Court at Indore had passed a judgment dated 08/06/2020 in Anushree Goyal vs. State of M.P. & Ors. W.P. No. 7739/2020, wherein, the co-ordinate Bench of the Court had held that the custody of the minor child is to be given to the mother i.e. petitioner and had allowed the said writ petition.

The Court observed that the mother and father of the child are well educated. There was nothing adverse brought before the Court that the parents of the petitioner with whom she is living are not capable of maintaining the petitioner as well as the child.

In this context, the Court noted,

In the present case the child is aged about 15 months and this Court keeping in view Section 6 of Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother.”

The Court also observed that it was not dealing with the application preferred under Section 4 of Guardians and Wards Act, 1890 and that it was dealing with the Habeas Corpus writ petition.

The Court relied on the Judgment of the Apex Court in the case of Sheoli Hati Vs. Somnath Das (2019) 7 SCC 490, wherein the Supreme Court, while deciding the issue relating to custody of a child had held that the welfare of a child is of paramount importance.

In view of above, the respondents No. 6 to 8 were directed to handover the custody of the child Yatharth to the present petitioner/mother under the supervision of Assistant Sub Inspector of the concerned police station, so that the transition of the child takes place peacefully and without any untoward incident.

However, the respondents No. 6 to 8 were given the liberty to proceed in accordance with law for seeking custody of the child, if so advised.

Case Details:

Case Title: Madhavi Rathore v. State of M.P. & Ors.

Case No.: W.P. No.10370/2020

Quorum: Justice S. A. Dharmadhikari

Appearance: Advocate Prashant Sharma (for the petitioner); Additional Advocate General Rohit Mishra (for Respondents No. 1 to 5/State); Senior Counsel K. N. Gupta with Advocate Praveen Newaskar, Advocate (For Respondents No. 6 to 8).

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