The Allahabad High Court has observed that while deciding the custody of a minor child, the welfare of the child must outweigh every other consideration, especially when the child is of such a tender age that he remains emotionally and physically dependent on his mother.
Acting on this principle, the Court directed a Jaunpur-based police constable to hand over the custody of his 21-month-old son to the child’s mother within three days, remarking that separating an infant from maternal care at this stage would not be in the child’s best interest.
The order was passed by Justice Sandeep Jain while allowing a habeas corpus petition filed by the child’s mother. The case arose out of a custody dispute between the woman and her husband, respondent No. 6, who is serving as a constable in the Uttar Pradesh Police and was posted in the Jaunpur district.
The Court noted that an earlier coordinate Bench had dismissed the petition on the ground that the parties could pursue remedies under the Guardian and Wards Act, 1890.
However, the Single Bench declared that a habeas corpus petition relating to a minor’s custody must be decided on merits and can’t be turned away merely because another statutory forum is available.
According to the petitioner, her marriage with the respondent was conducted on December 4, 2023, after that, she was allegedly subjected to cruelty and harassment over dowry demands.
She also submitted that the child was forcefully taken away from her custody on August 19, 2025. In connection with the incident, an FIR was lodged at Police Station Haldi, district Ballia under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, against the respondent.
The councel for the petitioner also informed the Court that the constable had later been suspended by the Senior Superintendent of Police, Jaunpur, for allegedly disregarding directions issued by the Child Welfare Committee.
While examining the matter, the High Court referred to Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that custody of a child below five years ordinarily remains with the mother.
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The Court observed that a child in the growing years requires consistent care, affection, and emotional security, which, in normal circumstances, is best provided by the mother.
The respondent argued that since the petitioner was dependent on her parents and allegedly suffering from health-related issues, she was not capable of ensuring the welfare of the minor.
Allegations were also leveled that she suffered from mental health issues and alcohol addiction. The Court, however, found no material on record to substantiate those claims.
It noted that the medical prescriptions relied upon by the respondent only reflected treatment for abdominal pain and contained no opinion suggesting mental instability or incapacity.
The Court also took note of documents placed on record showing that the petitioner’s mother was employed in government service while her father was a retired government employee receiving pension benefits, indicating that the petitioner had adequate family support for raising the child.
Another aspect that weighed with the Court was the conduct attributed to the respondent during the dispute. The petitioner placed before the Court WhatsApp chats and photographs allegedly indicating that the respondent was residing with another woman after solemnizing a second marriage.
Though the Court refrained from making any final observation regarding the nature of that relationship, it remarked that the photographs did show the respondent in the company of another woman.
The Court further observed that the material available on record prima facie suggested that the child had been forcibly taken away from the petitioner and that the respondent had failed to comply with directions earlier issued by the Child Welfare Committee for restoration of custody.
The Court said such conduct was particularly troubling because the respondent was a member of a disciplined police force and yet had shown disregard towards judicial directions.
Concluding that the child’s welfare would be best served in the custody of the mother, the Court ordered the respondent to hand over the minor to the petitioner within three days.
At the same time, it protected the father’s visitation rights and permitted him to meet the child twice every month after giving prior information to the petitioner, with the meetings to take place at the nearest police station.
Accordingly, the habeas corpus petition was allowed.
Case: Ms. X vs State Of U.P. And 7 Others
Case No: Habeas Corpus Writ Petition No. – 931 of 2025
Date of Order: 30.04.2026
Status: Allowed
