Child custody battles become especially sensitive when the child is very young. Under Indian law, a child below five years is generally presumed to need the care, affection and emotional support of the mother. This principle is widely recognized under the Hindu Minority and Guardianship Act (HMGA), 1956, as well as by multiple court judgments.

But what happens when the father has kept the child and files a case seeking permanent custody?
Does the mother still have strong legal remedies?

The answer is YES—the mother has several powerful remedies under both civil and criminal law.

This blog explains all possible legal options available to a mother in such situations.

1️⃣ File for Immediate Custody Under the Guardians and Wards Act (GWA), 1890

The first and most important remedy is to file:

✔ Petition for Custody + Interim Custody (Section 7 & 12, GWA)

The mother can file a separate petition before the Family Court seeking:

• Permanent custody
• Interim custody (urgent temporary relief)
• Visitation rights if interim custody is not granted immediately

Why this is powerful?

Courts follow a general rule:

A child under five years should ordinarily be with the mother, unless she is proven unfit.

Therefore, the mother has a strong chance of getting interim custody quickly.

2️⃣ Seek Immediate Pick-Up / Interim Restoration of Child

The mother can request the court:

✔ “Pick-Up Order” / “Restoration Order”

If the father has forcibly taken the child, withheld the child, or is preventing contact, the court can order the child to be:

• Produced before the court
• Handed back to the mother temporarily
• Shifted to the mother’s custody until trial

Family courts frequently grant such urgent relief, especially for children under five.

3️⃣ File a Habeas Corpus Petition in the High Court

If the child is being illegally detained by the father and not produced before the mother, she can file:

✔ Writ of Habeas Corpus (Article 226, Constitution of India)

This is used when:

• The father refuses to allow the mother to meet the child
• The child is kept in a hidden location
• The father took the child suddenly or without consent

High Courts treat minor children as persons who cannot decide for themselves, so illegal custody can be challenged through a habeas corpus petition.

This often results in very fast relief.

4️⃣ File a Complaint for Child Removal or Kidnapping (in extreme cases)

If the child was taken forcefully, secretly, or in violation of a court order:

✔ Section 97 CrPC – Search Warrant for Recovery of Child

A Magistrate can issue a warrant to produce the child immediately.

✔ Kidnapping from lawful guardian (Section 361 IPC)

A father may commit an offence only if:

• He takes the child away from the lawful guardian (the mother),
• Without consent, AND
• With the intention to deprive the lawful guardian of custody.

This remedy is used rarely and only in serious cases.

5️⃣ File for Visitation and Contact Rights Immediately

Even if permanent custody cannot be granted instantly, the mother should file for:

✔ Regular visitation

✔ Video calls

✔ Weekend or overnight access

Courts believe that both parents should remain connected with the child.

This helps in two ways:

1. The bond between mother and child is preserved.
2. It prevents the father from creating distance or alienation.

6️⃣ File for Maintenance for the Child (and for Herself if Eligible)

The mother can file for:

✔ Child Maintenance (Section 125 CrPC / Personal Laws)

Even if the father is keeping the child, the mother is still entitled to:

• Her own maintenance
• Separate child maintenance, if the child stays with her even part-time

Financial security strengthens the mother’s overall custody case.

7️⃣ Prove the “Welfare of the Child” Standard

All custody cases revolve around:

What is in the best interest and overall welfare of the child?

The mother should highlight:

• Emotional bonding
• Breastfeeding needs (if applicable)
• Stability and safe environment
• Schooling, health, and routine
• Father’s neglect, violence, or instability (if any)

Courts prioritize younger children staying with the mother unless exceptional circumstances exist.

Key Case Law: Mother’s Preferential Right for Child Under 5

Courts have consistently held:

A young child (below five) should naturally be with the mother unless proven otherwise.

This principle strengthens the mother’s position significantly.

Final Thoughts

If the father files a permanent custody case for a child under five, the mother is not helpless. She has multiple legal avenues—fast and effective.

Her main remedies include:

• Petition for custody
• Interim custody / pick-up orders
• Habeas corpus in the High Court
• Visitation and contact rights
• Maintenance
• Criminal remedies (in extreme cases)

With the right legal approach, courts generally favour placing a very young child with the mother.