HC: Grant custody to mother unless mental condition harmful to minor

Saurabh Malik

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Chandigarh, November 7

The Punjab and Haryana High Court has made it clear that a mother ought to be granted less than five-year-old child’s custody unless her mental or physical incapacitation was detrimental to the minor’s health. The Bench also ruled ordinarily a child under three ought not to be separated from the mother even if she was admitted to an institution for care and rehabilitation.

Mother’s lap natural cradle

• The assertion by Justice Jasjit Singh Bedi came in a case where the husband of the petitioner claimed she was suffering from a mental condition & had suicidal tendencies
• Justice Bedi further made it clear a mother’s lap was a natural cradle where the child’s safety and welfare could be assured and the same did not have a substitute

The assertion by Justice Jasjit Singh Bedi came in a case where the husband and the in-laws of the petitioner-woman claimed she was suffering from a mental condition and had suicidal tendencies. Among other things, it was contended that the child’s welfare was best served in the father and the paternal grandparents’ custody.

The matter was brought to Justice Bedi’s notice after the mother filed a habeas corpus petition for directing the state of Punjab and other respondents to produce her minor child from the “illegal detention” of her husband and in-laws and allow him to join her company.

Allowing the petition, Justice Bedi further made it clear a mother’s lap was a natural cradle where the child’s safety and welfare could be assured and the same did not have a substitute. Maternal care and affection was, as such, indispensable for a child’s healthy growth.

Referring to a plethora of judgments, Justice Bedi further asserted that its perusal showed that the court was not bound by a parent or guardian’s mere legal right while deciding child custody cases. The provisions of special statutes governed the parents’ or the guardians’ rights. However, the minor’s interest and welfare was the supreme consideration in child custody cases.

Due weightage was required to be given to the child’s comfort, health, education, intellectual development and familiar surroundings. The question of the minor’s interest and welfare was to be judged “on consideration of acknowledged superiority of the mother’s love and affection for the children”.

Turning to the facts of the case in hand, Justice Bedi added that the petitioner was, in any case, not staying at a mental health establishment for receiving care or treatment. She was, on the contrary, working with a multinational company with BTech (IT) qualification.

Justice Bedi added that the denial of custody to the petitioner — the child’s natural and biological mother — would be detrimental to the mental health of not only the child, but the mother as well. The bond between a mother and child was hard to replicate. “Therefore, in the case of a mother, especially where the custody concerns a child less than five, 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”.