Punjab & Haryana High Court: habeas corpus lies for custody; a child under five ordinarily stays with the mother

A Division Bench of the Punjab and Haryana High Court dismissed a Letters Patent Appeal by a father and his family against a single judge's order that allowed a mother's habeas corpus petition and directed that her son, aged about four years and five months, be handed to her. The father argued that habeas corpus is not maintainable in a custody dispute between parents and that the mother should go to a civil court under the Hindu Minority and Guardianship Act, 1956, adding that the child had lived comfortably with him for over a year. Relying on Supreme Court decisions including Yashita Sahu v. State of Rajasthan, the Bench held that a habeas corpus petition for custody of a minor is maintainable. A court may send parties to the civil court where a detailed inquiry is needed.

On the merits, it held that the child's welfare is paramount, and that the proviso to Section 6(a) of the 1956 Act provides that custody of a child under five shall ordinarily be with the mother. The word 'ordinarily' allows departure only if custody with the mother would harm the child, which requires showing she is unfit. Nothing showed that, and the time spent with the father's family or his financial position could not replace a mother's care. The father retained visitation rights and could seek permanent custody in a civil court.