All HC | If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? HC discusses

Allahabad High Court: J.J., Munir, J., addressed a matter wherein the father of the minor children has been facing trial for criminal charges and has instituted the petition seeking custody of his minor children.

The instant petition was instituted for a writ of habeas corpus on behalf of two minor children.

Minors’ Custody

It was stated that respondent 4 and respondent 5 be directed to produce the two minor-children detenues before the Court and minors be given into the father’s custody who has instituted the instant petition.

Digvijay Singh, counsel for the petitioners and Pankaj Kumar Tyagi, counsel appearing on behalf of respondent 4 and Sri Jhamman Ram, Additional Government Advocate appearing on behalf of the State.

Analysis and Decision

The issue of minor’s custody in the present matter came into light after the unnatural death of their mother, regarding which Awadesh Gautam (husband) and four others of his family were reported to the police by the respondent 4 charging them with murder and destruction of evidence.

It was alleged that the minors were taken forcibly by respondent 4 when the husband of the deceased was sent to jail.

Bench on perusal of the above stated observed that the question regarding maintainability of a habeas corpus writ petition to decide issues regarding custody of children or guardianship between a parent snd some other kindred, or between two parents, both of whom are natural guardians, all of this has been fairly well-settled. The stated issue came up for consideration before the Supreme Court in Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247 wherein it was held that:

“…in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court.”

In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 it was held that:

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. 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 is of the view that 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.”

In the present matter, Court stated that the custody cannot be termed as unlawful. Respondent 4 is the minors’ grandmother who has been given custody of the minors’ by Neeraj Gautam, the cousin or relative of Awadhesh’s in the presence of the Station House Officer.

Awadhesh who is the father of the minors’ could say that being the natural guardian of the two minors’ he has the right to seek their custody from the grandmother.

It is precisely this right which Awadhesh asserts, by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. He says he is the sole natural surviving guardian, and therefore, entitled to the minors’ custody. It is, no doubt, true that Awadhesh is the minors’ natural guardian under Section 6 (a) of Act, 1956, but the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare.

The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best.

The principle governing custody of minor children, apart from other issues, fell for consideration of the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

In the above-cited case, the facts disclose that the father, who claimed the minors’ custody from his maternal grandfather and grandmother was like her, an accused in a case relating to his wife’s dowry death. Fathers’ involvement in a case relating to wifes’ dowry death was regarded by the Supreme Court as an important factor to be carefully addressed.

“…fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, was held to be an important consideration while determining the question of welfare of the minor.”

Court interacted with the eldest amongst the minors’ who expressed that he is not disturbed at all about the fact that his maternal grandmother has placed him and his sister at Sri Braddhanand Bal Ashram. 

Further, the child added that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel. During the course of the conversation, the child emotionally brokedown and wept. He insisted upon staying with the hostel and refused to go back to his father.

Later the Court looked into the allegations for which the father was facing trial, wherein it was noted that the wife had called up her mother stating that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near portraying it as an accident.

The totality of the circumstances on record shows that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody.

Bench held that the father is not entitled to the minors’ custody when he is facing criminal charges. Once he is acquitted, it would be open to him to make an appropriate application seeking their custody to the Court of competent jurisdiction under the Guardians and Wards Act, 1890.

In the totality of the circumstances obtaining for the present, this Court did not find it appropriate to grant any visitation rights to Awadhesh Gautam.[Shaurya Gautam v. State of U.P., Habeas Corpus Writ Petition No. 140 of 2020, decided on 10-11-2020]

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