The Allahabad High Court has ruled in a habeas corpus petition that the custody of a minor below the age of five years should ordinarily remain with the mother, unless circumstances disentitle her from such custody. The Court also clarified that territorial jurisdiction is established if any part of the cause of action arises within the court's jurisdiction.
Background & Facts
The Genesis
The petitioner, Smt. Garima Sharma, filed a habeas corpus petition before the Allahabad High Court seeking the custody of her minor son, Rudra Parashar, aged approximately 3½ years. The petitioner and respondent no.4, Akash Sharma, are the parents of the minor corpus. The petitioner is employed as an Environmental Engineer in Mumbai and earns approximately Rs.80,000 per month. The respondent is employed with the World Bank at Delhi and earns approximately Rs.4.5 lakhs per month.
Key Facts
- The minor corpus was admitted to a school at Ghaziabad and had been residing with the petitioner until 03.04.2026.
- On 15.05.2026, both parties appeared before Police Station Vijay Nagar, District Ghaziabad, where a compromise was recorded. The respondent admitted that the minor corpus had been in his custody since 03.04.2026.
- Under the compromise, custody was to alternate between the parents every month. However, the respondent failed to abide by the terms.
- The petitioner's parents reside in Mumbai and are willing to assist in looking after the minor corpus during her working hours.
- The respondent took the minor corpus to Faridabad without the petitioner's knowledge or consent.
Procedural History
- 10.07.2026: The Court directed the parties and the minor corpus to remain present before the Court.
- 21.07.2026: The present order was passed after interaction with the parties and the minor corpus.
The Parties' Positions
The respondent contended that the minor corpus was in his custody at Faridabad, and thus, the cause of action arose outside the territorial jurisdiction of the Allahabad High Court. He also argued that the petitioner, being a working woman, would not be in a position to look after the minor corpus.
The petitioner submitted that the minor corpus had been residing with her in Ghaziabad and was forcibly taken away by the respondent. She relied on the compromise recorded at the police station, which acknowledged the minor's residence in Ghaziabad prior to 03.04.2026.
Relief Sought
The petitioner sought the custody of the minor corpus, asserting that her custody would best serve the welfare of the child.
The Legal Issue
The central question was whether the Allahabad High Court has territorial jurisdiction to entertain the habeas corpus petition when part of the cause of action arose within its territorial jurisdiction. Additionally, the Court had to determine whether the custody of a minor below the age of five years should ordinarily remain with the mother under Section 6(a) of the Hindu Minority and Guardianship Act, 1956.
Arguments Presented
For the Petitioner
The petitioner relied on Nawal Kishore Sharma v. Union of India and Others (2014) 9 SCC 329 to argue that the cause of action arose within the territorial jurisdiction of the Allahabad High Court, as the minor corpus was forcibly taken from her custody in Ghaziabad. She also submitted that the minor corpus had been admitted to a school in Ghaziabad and that her parents were willing to assist in his care.
For the Respondent
The respondent contended that the minor corpus was in his custody at Faridabad and that the petitioner, being a working woman, would not be able to look after the minor corpus. He also argued that the Court lacked territorial jurisdiction as the entire cause of action arose outside its territorial limits.
The Court's Analysis
The Court examined the provisions of Article 226(2) of the Constitution of India and Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The Court noted that the minor corpus had been residing with the petitioner in Ghaziabad and was taken away by the respondent on 03.04.2026. The compromise recorded at the police station in Ghaziabad on 15.05.2026 acknowledged the minor's residence in Ghaziabad prior to 03.04.2026, establishing that part of the cause of action arose within the territorial jurisdiction of the Court.
"From the material brought on record, it is apparent that the minor corpus had been residing with the petitioner and was taken away by respondent no.4 from Ghaziabad on 03.04.2026. Thus, a part of the cause of action has undeniably arisen within the territorial jurisdiction of this Court."
The Court also interacted with the minor corpus to assess his emotional attachment and comfort level with both parties. The minor corpus exhibited a clear sense of security and affection towards the petitioner, his mother. The Court observed that while the minor's preference cannot be determinative due to his tender age, his conduct reflected a strong emotional bond with the petitioner.
The Court held that under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a minor below the age of five years ordinarily rests with the mother, unless circumstances disentitle her from such custody. No such circumstances were brought on record by the respondent.
The Court also noted that the petitioner is financially capable of taking care of the minor corpus and that her parents are willing to assist. The respondent was granted visitation rights and the right to claim custody during school vacations, subject to the petitioner's assurance of cooperation.
The Verdict
The petitioner succeeded in her habeas corpus petition. The Court held that the Allahabad High Court has territorial jurisdiction to entertain the petition as part of the cause of action arose within its jurisdiction. The custody of the minor corpus, Rudra Parashar, was handed over to the petitioner, Smt. Garima Sharma. The respondent, Akash Sharma, was granted visitation rights and the right to claim custody during school vacations. The parties were restrained from taking the minor corpus outside India.
What This Means For Similar Cases
Territorial Jurisdiction in Habeas Corpus Petitions
- Courts must examine whether any part of the cause of action arises within their territorial jurisdiction before dismissing a habeas corpus petition on jurisdictional grounds.
- Documentary evidence, such as school admission records and police station compromises, can establish the place of residence and the cause of action.
Mother's Custody for Minors Below Five Years
- Section 6(a) of the Hindu Minority and Guardianship Act, 1956 establishes a statutory presumption that the custody of a minor below the age of five years ordinarily rests with the mother.
- Courts must assess the emotional bond and welfare of the minor, even if the minor's preference cannot be determinative due to tender age.
Balancing Parental Rights and Welfare of the Child
- While parental rights are important, the welfare of the child is paramount.
- Visitation rights and shared custody arrangements can be crafted to maintain the emotional bonding between the child and both parents, subject to the child's welfare.
Restrictions on International Travel
- Courts can impose restrictions on taking the child outside the country to prevent international abduction and ensure the child's welfare.
Reconciliation Efforts in Custody Disputes
- Courts should make efforts to reconcile spouses in custody disputes to ensure the welfare of the child.
- If reconciliation fails, courts must prioritize the child's welfare in determining custody and visitation rights.
