Allahabad High Court: Dr Yogendra Kumar Srivastava, J., addressed a petition wherein petitioner is an accused of the offences lodged under Sections 498-A, 304-B Penal Code, 1860 and 3/4 of Dowry Prohibition Act, 1961 seeking custody of his children from their maternal grandparents.
The instant petition was filed for a writ of habeas corpus with an assertion that petitioner 2 and 3 (minor children of petitioner 1 age about 8 years and 3 years, respectively) were detained by respondents 4 and 5 (maternal grandparents of the minor children).
Petitioner 1 was sent to jail for being the primary accused in respect of an incident relating to the death of the wife of petitioner 1 i.e. mother of the children, whose custody was being sought.
Additional Advocate General submitted that since petitioner 1 was the principal accused in the above-stated criminal case, granting him the custody of children would be detrimental to their interests.
In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, it was held that:
the paramount consideration in such matters would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed.
Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, it was held that:
though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.
Petitioner could not demonstrate as to how the custody of minor children with their maternal grandparents could be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus.
Hence, petitioner withdrew the petition stating that he would pursue other remedies available under the law with regard to the custodial rights.[Pankaj v. State of U.P., 2021 SCC OnLine All 116, decided on 20-01-2021]
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