Last Updated on June 8, 2024 by Satish Mishra
In this post we will discuss about a petition by mother to hand over the custody of her daughter to the petitioner and to provide adequate security to the petitioner and her minor daughter.
Who wins the custody Battles? Definitely the child because his interest is of paramount importance rather than the father or mother.
Can father get custody of minor child?
Judgment passed by Hon’ble Apex Court in case ‘Sumedha Nagpal Vs. State of Delhi and others’, 2001 SCC (Cri) 698 has further submitted that while deciding the custody of minor, prima facie consideration is paramount welfare of the child and custody is not to be decided upon the rights of the parties under the law.
In a landmark judgment, the Apex Court in case Gohar Begum v. Suggi alias Nazma Begum and others, 1960 AIR (SC) 93, has laid down that the remedy of the writ in the nature of habeas corpus is available where the minor child is illegally or improperly detained. Thus, the writ of habeas corpus for custody of minor child is certainly maintainable. It is a settled principle of law that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. It is also well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
In case Pinki Agarwal (Supra), it has been held as under :- “………10. Section 6 of the Act of 1956 stipulates that custody of a minor who is less than five years has to be with her/his mother.
Natural guardians of a Hindu minor-The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
As per the Act of 1956, the custody of a minor, who has not completed the age of 5 years, shall ordinarily be with the mother, unless it can be established that the mother is incompetent or unable to look after the minor. A mother plays an important role in shaping, in nurturing and moulding a young tender mind. She is in fact the child’s first teacher, guide and mentor and provides a safe emotional haven to her children. There is a presumptive truth that a mother is better suited to fulfil the needs of a minor, unless proved to the contrary. The term ‘Welfare of the Child’ has a wide connotation and cannot be limited to fulfilling the financial needs only. It is in this background that the legislature in its wisdom has tried to ensure that the custody of a minor child who has not attained the age of 5 would remain with the mother…..”
In case Syed Saleemuddin (Supra), Hon’ble Supreme Court granted the custody of the children to their mother till the family Court disposed of the petition for the custody of the children.
In view of the above referred judicial precedents, it has emerged that in view of proviso to Section 6(a) of the HMG Act, the custody of a minor child who has not completed the age of five years shall ordinarily be with the mother.
The most important consideration which must always weigh with the Court in making orders for the appointment of guardians of minors is the welfare of the minor, and in that view of the matter, the legal rights of the mother, in the case in hand, must be understood subject to provisions of Section 7. Under Section 7 of the Act, the Court should be guided by the sole consideration of the welfare of the minor, and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case.
The duty of a court exercising its parens patraie jurisdiction as in cases involving custody of minor children is all the more onerous. Sentiments and welfare of the minor are supreme consideration which cannot be ignored.
The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. The term ‘custody’ should not be interpreted in its strict sense as physical custody. Custody means custody in the sense of supervision and control over the child. The mother’s or father’s right to the custody of a their minor child is no longer absolute. It is circumscribed by the consideration of the welfare of the minor.
In case of custody of a minor child, the Court is expected to strike a just and proper balance between the requirements of welfare of the minor child and rights of parents over the minor child. The Court should also take into consideration the preference of the minor child to stay with either parent or grand parent.
Taking into consideration the provisions of law and the factual matrix which is disputed, I am of the opinion that custody of the father as a natural guardian cannot be said to be illegal or unlawful and therefore, it would not be appropriate to issue a writ of habeas corpus in favour of the petitioner. In the case of disputed questions of facts, it is a matter of evidence to be led by both the parties as to which party will be in a better position to take care of the minor child which is concededly the paramount consideration.
Custody of Child Case
The following article addresses a petition filed by Mandeep Kaur (petitioner) against the State of Punjab and others (respondents) in the High Court of Punjab and Haryana at Chandigarh and was adjudicated upon by Justice Arun Kumar Tyagi. The petition was filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of habeas corpus directing respondent No.2 to get detenue- Alizeh Dhalla, two and half years old minor daughter of the petitioner, released from illegal custody of respondents No.4 (husband) and 5 (mother-in-law), hand over her custody to the petitioner and to provide adequate security to the petitioner and her minor daughter.
The following analysis of the case can help parents seeking custody of their children to know their rights and possible courses of action.
Also Read- Visitation Rights by Punjab Haryana High Court Chandigarh
The petitioner, Mandeep Kaur was married to respondent No.4 and they had a daughter born out of wedlock named AlizehDhalla. A matrimonial dispute between the petitioner and respondents No.4 and 5 was resolved by the Panchayat and respectable of the locality after which the petitioner started living with respondent No. 4. Respondents No.4 and 5 left the petitioner in the matrimonial house and called her parents to stay with her on the pretext that they were to go out of station but subsequently lodged FIR No.0133 dated 16.11.2019 under Sections 457 and 380 of the Indian Penal Code, 1860 with the Police Station City Rampura, Tehsil Rampura Phul, District Bathinda on false and frivolous allegations of committing of theft by them and got the petitioner arrested in the above said case. The petitioner was granted bail vide order dated 18.11.2019. Thereafter, the petitioner requested respondents No.4 and 5 to give custody of the minor daughter to her but they refused. Due to tender age of the minor child it will be for the welfare and in the interest of the minor child that its custody be handed over to the petitioner-mother. The petitioner submitted representation dated 28.11.2019 to Senior Superintendent of Police, Barnala but no action has been taken on the same.
Respondents No.4 and 5 opposed the petition in terms of reply dated 16.12.2019 filed by respondent No.4.
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Respondent No.4 objected the petition given that he is the legal guardian of the minor child under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short, “the HMG Act”). They attempted to declare the habeas corpus petition as not maintainable by citing that an alternative remedy of filing petition for custody of the minor child under the HMG Act/ the Guardians and Wards Act, 1890 (for short, “the GW Act”) is available to the petitioner. Respondent No.4 pleaded that in deciding the custody of the minor child, welfare of the child is the paramount consideration.
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Respondent No.4 and 5have a good settled business of gold smith which they both participate in. The father of the petitioner happened to be under arrest and her brother too is facing a matrimonial dispute with his wife. The petitioner along with her parents is also involved in theft of valuables from the house of respondents No.4 and 5. Matrimonial dispute has arisen between the petitioner and respondent No.4 due to interference by her father. Proper care of the minor child cannot be taken by the petitioner and her family members. This was the reason due to which the child got detached from the petitioner and respondent No.4 is taking care of her since her birth. The child is going in a good play school. Respondent No.4 has accordingly prayed that the petition may be dismissed. This was the reasoning provided by the respondents to build the argument that the petitioner was not well suited to take care of her child. Mr. Naresh Jain, learned counsel for respondents No.4 and 5 reiterated the same arguments along with the claim that the petitioner has no independent source of income and remains disturbed due to problems in her paternal family.
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He added, In the absence of evidence to conclude that the minor child is not properly kept by respondents No.4 and 5, its custody cannot be given to the petitioner. Further, the welfare of the child is basically a question of fact which requires evidence. In the absence of such evidence, exercise of extra ordinary jurisdiction by this Court will not be proper. It will be expedient for the welfare and in the best of interest of the minor child that its custody be allowed to continue with respondent No.4 and the petition may be dismissed with direction to the petitioner to avail equally efficacious alternative remedy of filing petition under the HMG Act/the GW Act for custody of the minor child. In support of his arguments, learned counsel for respondents No.4 and 5 has placed reliance on the observations in cases.[1].
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The petitioner then submitted that under Section 6(a) of the HMG Act mother is entitled to custody of minor child up to the age of 5 years and her child is three and half years old.Due to its tender age, custody of the child with respondent No.4 is not lawful/proper. There being no efficacious remedy for redressal of her grievance by grant of immediate custody of minor daughter, present habeas corpus writ petition is maintainable and it should not be dismissed on the grounds of availability of alternative remedy. The petitioner is well educated having done MCA and can work of her own and provide basic amenities of life and can take proper care of the minor daughter. Respondents No.4 being businessman will be out of the house most of the time and may not be able to look after the minor child. The petitioner has nothing to do with the FIR lodged against her father and matrimonial dispute between her brother and his wife is a personal matter. The petitioner was falsely implicated in theft case by respondent No.4 due to matrimonial dispute. The petitioner has accordingly reiterated her prayer that custody of the minor child may be given to the petitioner. In support of his arguments, learned counsel for the petitioner has placed reliance on the observations in many cases[2].
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Clearly, the most important question is whether the writ petition of habeas corpus is maintainable on the grounds of custody when the minor child is with her lawful guardian, her father, and if there is an alternative legal remedy of filling a petition under HMG and GW Act before the Guardian/Family court.
In a previous Criminal Appeal No. 127 of 2020 SLP (crl.) No. 7390 of 2019 titled YashitaSahu Vs. State of Rajasthan and others decided on 20.01.2020 Hon’ble Supreme Court observed as under paragraph 9 that the law has developed enough for the writ petition to be maintainable even if the child is in custody of the other parent and can invoke the writ citing the best interest of the child. Multiple cases[3] where this writ was supported were cited. This court also agreed that the illegality of the detention is not needed to maintain the writ, the writ is focused on the welfare of the minor irrespective of legal rights of the parents. Other Cases[4] also deemed that the principle consideration of the court is the welfare of the child.
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In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (SC) 2019 (3) R.C.R. (Civil) 104 :2019 (7) SCC 42 Hon’ble Supreme Court observed that in custody cases although the remedy is usually under the HMG or GW Act
In child custody matters, the ordinary remedy lies only under the HMG Act or the GW Act as the case may be. But what is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court believes a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
It follows from the above discussion that a petition for issuance of a writ of habeas corpus to recover the custody of minor child if the minor child is in illegal custody or being detained incustody which would be detrimental to the interest of the minor child is maintainable[5]. The Supreme Court/High Court can exercise of its writ jurisdiction under Article 32/226 of the Constitution direct by issuance of a writ of habeas corpus that custody of a minor be given to any other person till decision of the question of its custody by the Guardian/Family Court in accordance with law[6]Mere availability of an alternate remedy of filing custody petition under the HMG Act/the GW Act is no bar to exercise of extra ordinary writ jurisdiction for issuance of a writ of Habeas Corpus.[7]
The respondents No. 4 and 5 attempted to cite cases[8]wherein petitions were dismissed on the grounds of availability of alternate remedy or similar matters pending in Family courts however the court reiterated the paramountcy of welfare and irrelevance of legality of guardianship and dismissed their argument.
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The nest question to be decided was: Is the petitioner is entitled to take custody of her daughter from respondent No.4?
The law on the matter is determined under the HMG Act given that both parties are Hindus which says as per Section 6 (a) of the HMG Act, natural guardian of a Hindu Minor in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property) is the father, in the case of a boy or an unmarried girl and after him, the mother. However, proviso to Section 6(a) of the HMG Act provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
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In Roxann Sharma v. Arun Sharma (SC) : 2015 (2) R.C.R. (Civil) 93 Hon’ble Supreme Court observed that the HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act suggests preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. However these provision and those in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.
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In the present case the question of welfare and interest of the minor daughter has to be judged on the consideration of universally acknowledged superiority of the mother’s instinctive selfless love and affection of her children, particularly the infants. Many cases are subsequently cited that echo the position of a mother as a selfless and the mother’s lap as a natural cradle[9] along with giving the mother interim custody[10] of the child while the matter is being heard in Family courts.
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In view of Section 6(a) of the HMG Act, the custody of 16 of 19 minor daughter who is now aged about three and half years has to be “ordinarily” with the petitioner being its mother.. The question of guilt or innocence of the petitioner in the above said theft case is the concern of the trial Court and is not required to be gone into by this Court in the present case. The petitioner has nothing to do with the criminal case registered against her father. Matrimonial dispute of her brother with his wife will also be a personal matter. Suffices it to observe here that the petitioner cannot be said to be disabled by these matters from properly looking after and taking motherly care of the minor daughter. Respondent No.4 being businessman has to go out of the house to attend to the business and respondents No.4 and 5 cannot be said to be in a better position to take care of the minor child as compared to its mother-the petitioner.
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Moreover, Respondents No.4 and 5 have not given any cogent reasons to suggest that the child’s welfare will be under threat if she is in the interim custody of the petitioner. Therefore, there is no valid ground to deny interim custody of the minor daughter who is aged less than five years to its mother-the petitioner which is in fact essential to the welfare and in the best of the interest of the minor daughter. The mother is entitled to its custody not only as per the statutory right conferred by Section 6(a) of the HMG Act.
Given these facts and circumstances the judge decided that till the question of custody of the minor daughter is decided by Guardian/Family Court, the welfare and interest of the minor child would be better served by entrustment of its interim custody to its mother-the petitioner while giving visiting and talking privileges to Respondent no.4, the father.
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This post is written by Nankee Arora
For case specific advice, please contact best/top/expert Custody Lawyers Advocates in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Baltana etc.
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[1]Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others (SC) : 2019(3) R.C.R.(Civil) 104; Amit Vs. Nirmal Sahu (Allahabad HC) : 2009(5) R.C.R.(Civil) 258; Manjula Jha Vs. Ravindra Nath Jha (Allahabad HC) : 1988(1) HLR 273 and MuthianSivathanu Vs. Home Secretary, Government of Tamil Nadu and others (Madras HC) : 2014(38) R.C.R.(Criminal) 219
[2]Manju Tiwari Vs. Dr. Rajendra Tiwari (SC) : AIR 1990 (SC) 1156; Gippy Arora Vs. State of Punjab and others : 2012(4) R.C.R.(Civil) 397 (PHHC); CRWP No.68 of 2017 titled as ‘Kirandeep Kaur Vs. State of Punjab and others’ decided on 07.03.2017 and CRWP-3013 of 2020 titled as ‘Neha Vs. State of Hayrana and others’ decided on 01.06.2020
[3]Elizabeth Dinshaw vs. Arvand M. Dinshaw&Ors. (1987) 1 SCC 42, Nithya Anand Raghavan vs. State (NCT of Delhi) &Anr. (2017) 8 SCC 454 and LahariSakhamuri vs. SobhanKodali (2019) 7 SCC 311
[4]Syed Saleemuddin Vs. Dr. Rukhsana : 2001(2) R.C.R.(Criminal) 591,
[5](See Gohar Begam Vs. Suggi alias NazmaBegam (1960) 1 SCC 597; Manju Tiwari Vs. Rajendra Tiwari : AIR 1990 SC 1156; Syed Saleemuddin Vs. Dr.Rukhsana : 2001(2) R.C.R.(Criminal) 591 and Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others (SC) : 2019(3) R.C.R.(Civil) 104.)
[6]See Manju Tiwari v. Dr. Rajendra Tiwari, (SC) :AIR 1990 SC 1156; Syed Saleemuddin Vs. Dr.Rukhsana
[7]See Gohar Begam Vs. Suggi alias NazmaBegam (1960) 1 SCC 597; Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others (SC) : 2019(3) R.C.R.(Civil) 104; Smt. Nandita Virmani Vs. Raman Virmani : 1983 Cri. L. J. 794 and Durgesh Kumar Ahuja Vs. Vineet Khurana and another : 1985 Cri. L.J. 1195
[8]Amit Vs. Nirmal Sahu (Lucknow Bench) : 2009(5) R.C.R.(Civil) 258; Manjula Jha Vs. Ravindra Nath Jha (Allahabad HC) : 1988(1) HLR 273 and MuthianSivathanu Vs. Home Secretary, Government of Tamil Nadu and others (Madras HC) : 2014(38) R.C.R.(Criminal) 219
[9]Eugenia Archetti Abdullah Vs. State of Kerala : 2005(1) RCR (Civil) 259, Surabhai Ravikumar Minawala Vs. State of Gujarat : 2005 (2) RCR (Civil) 822
[10]Manju Tiwari v. Dr. Rajendra Tiwari, (SC) :AIR 1990 SC 1156, Syed Saleemuddin Vs. Dr.Rukhsana : 2001(2) R.C.R.(Criminal) 591, Roxann Sharma v. Arun Sharma (SC) : 2015 (2) R.C.R. (Civil) 93, Gippy Arora Vs. State of Punjab and others : 2012(4) R.C.R.(Civil) 397 (PHHC).
