Child Has Fundamental Right To Love, Care & Protection Of Both Parents: P&H HC Grants Custody of 8-Month-Old to Mother; Grants Visitation Rights To Father

The Punjab and Haryana High Court has directed a father to hand over custody of his 8-month-old child to the mother while granting him visitation rights.

The Court emphasized that the welfare and best interests of the child include ensuring that the child is not deprived of the affection and presence of both parents. "The goal of the Court should be to cut through the conflict and to assess a suitable environment where the child’s overall well-being is safeguarded. The primary and paramount consideration is always with the child’s best interest, which encompasses his/her physical and psychological well-being," the Court observed.

The Single-Judge Bench of Justice Kirti Singh remarked, "When the parents are in conflict, the child's well-being should remain the paramount concern. The Court must ensure that the child is not treated as an object to be passed back and forth but rather a person whose stability and security must carefully be protected."

The Court further observed that "a child, especially at such a tender age, has a fundamental right to the love, care, and protection of both parents. This is not only essential for the child's emotional and psychological development but is also recognized as a basic human right."

The case was brought before the Court through a habeas corpus plea filed by the mother, who alleged that the father had illegally taken custody of the child amidst marital discord. According to the mother, she had been severely beaten and, upon leaving for her parental home, was not allowed to take the child with her. Despite approaching local authorities for assistance, she received no help in securing the child's return.

After hearing the submissions, the Court noted that the parents were unable to reach an amicable resolution regarding their son's custody despite efforts through the Mediation and Conciliation Centre.

The Court cited the Supreme Court's decision in Yashita Sahu v. State of Rajasthan (2020) to emphasize that a writ of habeas corpus can be maintained for the custody of a child when one parent holds custody, especially if it serves the child's best interests.

The Single-Judge underscored that the paramount consideration in any custody dispute is the child’s best interest, encompassing their physical and psychological well-being. It also warned that custody battles can often lead to children becoming unintended victims of parental conflict, where parents may present each other in a negative light in an effort to gain advantage.

"Such adverse approaches can cause significant emotional and psychological distress to the child, who becomes caught in the middle of the conflict," the Court remarked. The Court noted that the primary goal is to minimize disruption to the child's life and to ensure continuity with both parents unless there are compelling reasons—such as evidence of abuse or severe neglect—to limit or deny contact with one parent.

Given that the child was just 8 months old, the Court ruled that, until a competent court makes a final decision on the matter, custody should remain with the mother. However, the Court directed that the father be granted access to the child at the mother’s parental home, ensuring the child is not deprived of the father's affection and company.

"..keeping in view the child’s welfare and best interest which also includes ensuring that the child is not deprived of the affection and company of the father, this Court hereby directs that respondent No.4 will be provided access to the minor son by the petitioner at her parental home between 4:00 p.m. to 6:00 p.m. on 1st & 3rd Saturday of every month. Respondent No.4 will not, however, take the child out and will not by an act or omission on his part create any situation which has the direct or indirect effect of disturbing the sense of security and emotional balance of the child and the domestic harmony," the Court said.

Cause Title: XYZ v. State of Punjab & Ors. [Neutral Citation No. 2024:PHHC:118646]

Appearance:-

Petitioner: Advocate Vipin Mahajan

Respondent: DAG R.S. Thind, Advocate Nikhil Ghai

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