(i) Hindu Minority and Guardianship Act, 1956 (32 of 1956) Section 6 – Custody of minor child – Though the provisions of the special statutes govern the rights of the parents or guardians, however, the interest and welfare of the minor is the supreme consideration in cases concerning custody of the minor child – Due weightage should be given to the child’s comfort, health, education, intellectual development and familiar surroundings – The question of the interest and welfare of a minor child has to be judged on the consideration of the acknowledged superiority of the mother’s love and affection for the children – The lap of the mother is a natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same – Maternal care and affection is therefore indispensable for the healthy growth of a child.
[Para 11]
(ii) Constitution of India, Article 226 – Writ of Habeas Corpus was certainly maintainable by one parent against another and it is the principle duty of the Court to ascertain whether the custody of the child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and be handed over to another. [Para 12]
(iii) Mental Health Act, 1987 (14 of 1987) Section 2(21) – Even if the petitioner/mother was admitted in an institution for care and rehabilitation, even in such a situation, ordinarily a child under the age of 03 years ought not to be separated from her during her stay in such an institution – In the present case, firstly, the petitioner is not staying at any mental health establishment where she is receiving care or treatment – On the contrary, she is working with a multinational company – There can be no justifiable reason to deny her the custody of the child who is barely 02 years and 03 months old – In fact, denial of custody to the petitioner who is the natural and biological mother of the child would be detrimental to the mental health of not only the child but the mother as well. [Para 14]
