In the instant case, a writ of Habeas Corpus was filed by the father of a minor, and he prayed that
the custody of the child should be handed over to him who is currently in the care of his estranged wife.
The Allahabad High Court rejected his request and gave the custody to the mother because the child was only two years old.
Disharmony in marriage
The parties in the case were married in October 2016, and they were blessed with a child in September 2019.
Mother and father of the child could not get along and parted ways.
The mother filed an FIR against her husband in-laws in which proceedings are still going on.
It was alleged by the husband that the custody of the child is with the mother
and the father is not able to visit the daughter and has sought her custody.
As per Muslim Personal law, custody of the child should be with the father: Counsel for the petitioner.
As per the Counsel of the petitioner, personal law of the parties states that the natural guardian of the girl is the father.
It was submitted that as the couples are estranged, the custody of the child should be given to the father.
Guardians and Wards Act,1890 will be applicable in this case states counsel for the respondent.
Counsel who is representing the mother submitted to the Court that in the present case,
provisions of Guardians and Wards Act would override the Muslim Personal Law.
Learned Counsel further submitted that the mother is entitled to the custody of the child till the time the girl attains puberty.
As the child is only two years old, she needs the care of her mother.
Welfare of a Child is Paramount observes Allahabad High Court.
After going through all the facts and contentions in the case,
the Hon’ble Court opined that the mother and child seem to be inseparable. The Welfare of a Child is Paramount.
As the daughter is relatively young, her custody should be given to the mother who is best suited to take care of her.
On the issue that the brothers of the mother were drunkards,
the Court opined that no tangible evidence was placed before them; therefore, this allegation cannot be proved.
Father was given visitation rights to the child and was also given liberty to approach the appropriate forum, in case he thinks he has a better right to the minor’s custody.
Title: Aisha (Minor) And Another vs State Of UP And 4 Others
Case No. HABEAS CORPUS WRIT PETITION No. – 484 of 2020
Date of Order: 08.10.2020
Coram: Hon’ble Justice J.J Munir
Counsel for Petitioner:- Alok Kumar Srivastava
Counsel for Respondent:- GA.