Is minor's custody with mother illegal confinement? Punjab and Haryana HC to decide

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Chandigarh, November 24

The Punjab and Haryana High Court will decide whether a minor’s custody with the mother will amount to illegal confinement. As a consequence, the High Court will determine whether a writ of habeas corpus can be issued in such matters.

Visitation rights

• The Bench was told that visitation rights and other responsibilities were agreed upon between the couple at the time of dissolution of the marriage
• However, these were not being fulfilled by the respondent-wife, a police functionary posted in Ludhiana

The issue was raised before Justice Sandeep Moudgil’s Bench during the hearing of a habeas corpus petition filed by a father against the mother and the state of Punjab. Among other things, the Bench was told that visitation rights and other responsibilities were agreed upon between the couple during a compromise arrived at between the parties at the time of dissolution of marriage under Section 13-B of the Hindu Marriage Act. However, the same were not being fulfilled by the respondent-wife, a police functionary posted in Ludhiana.

The Bench was also told that the respondent-wife was not allowing the petitioner to meet the child. She was not even answering the phone call or replying to WhatsApp messages, despite his best efforts to fix a meeting on the last Sunday of every month to meet the child.

Taking up the matter, Justice Moudgil, on the previous date of hearing, directed the Ludhiana Commissioner of Police to ensure that the respondent-wife, stated to be posted there, was present before the court, along with the child, on the next date of hearing.

As the matter came up for resumed hearing, the wife and the child were present before Justice Moudgil’s Bench in pursuance to the court order. Appearing on her behalf, a senior counsel contended that the minor child could not be allowed to meet the petitioner-father due to certain unavoidable circumstances.

The senior counsel also prayed for some time to address the arguments on the questions: “Whether the custody of the minor child with the mother would amount to illegal confinement to invoke Article 226 of the Constitution for issuance of writ of habeas corpus? If yes, what would be in the welfare of the minor child, which shall be of paramount consideration to adjudicate in the instant case?”

Before parting with the order, Justice Moudgil observed that the parties, during the course of the hearing, had agreed that the child would be brought by the respondent-wife to her senior counsel’s office. Thereafter, she would be handed over the minor’s custody to take him along to Ludhiana. “It is made clear that during the meeting and interaction between the father and the son, no other person, including the mother, will be present inside that room,” Justice Moudgil asserted, before fixing the case for January 16 next.