himachal pradesh high court

Himachal Pradesh High Court: In a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’), against the Order of the Sub-Divisional Magistrate, Nalagarh, wherein it was held that the respondent 1/ mother, being the legal guardian of her minor sons was entitled to their custody, the Single Judge Bench of Vivek Singh Thakur*, J., dismissed the petition and granted the custody of the two minor children to their mother.


In the matter at hand, the mother of the two minor children was married to the petitioner’s son. The parents of the two minor children lived separately from the family along with their two minor children due to continuous quarrels within their family. The father of the minor children had allegedly committed suicide and an FIR was registered against their mother, wherein it was alleged that her husband/ father of the children had committed suicide due to their mother’s cruel behaviour. Subsequently, the mother of the minor children was arrested and was later released on bail. Thereafter, their mother had filed an application under Section 98 of the Cr.P.C for production and custody of her two minor children, but her application was rejected by the Magistrate on 09-08-2022. However, in a revision petition before the Additional Sessions Judge, the Order dated 09-08-2022 was set aside and the Magistrate was directed to decide the matter afresh. The Magistrate passed the impugned order dated 23-11-2022, directing the petitioners/ grandparents herein, to handover the custody of the two minor children to their mother and thereafter, a Production warrant was issued on 24-11-2022 for handing over the children.

Court’s Decision

The Court noted that the mother was not declared as incompetent or disentitled to have custody of her minor children. The Court referred to Section 6 of the Hindu Minority and Guardianship Act, 1956 (‘Guardianship Act’) and said that in case of a boy, the mother is the natural guardian after their father, and the proviso also provided that the custody of a minor, who has not completed the age of 5 years shall ordinarily be with the mother. Therefore, the Court said that after the father’s death, mother is the next person to have guardianship/custody of her minor children.

Further, the Court noted that the younger child had not even completed age of 2 years, whereas the elder one was about 7 years old. Thus, the Court said that in all eventualities the mother was entitled to have custody of her younger child and it would amount to cruelty if the children were separated from each other and, therefore, the Court said that the custody of the elder child should be handed over to the mother. The Court also stated that unless or until the mother is declared incapacitated and incompetent or disentitled for custody of children, by the competent Court in the appropriate proceedings, in accordance with Section 6 of the Guardianship Act, the mother is entitled to have the custody of her minor children, after their father’s death.

The Court said that the right of a mother to have custody of her children is not absolute, but subject to the welfare of her children. The Court also said that if the mother of the minor children is found to be incompetent, disentitled or failed to ensure the welfare of her children, then she would lose her right to continue with their custody and, in such eventuality, the custody or guardianship of the children would be handed over to their grandparents or any other competent person.

[Lajwanti v. Priti Devi, 2023 SCC OnLine HP 725, Decided on 02-06-2023]

*Judgment Authored by: Justice Vivek Singh Thakur

Advocates who appeared in this case :

For the Petitioner: Advocate Shanti Swaroop Bhatti;

For the Respondents: Senior Advocate. G.D. Verma, Advocate Hitesh Thakur, Advocate Shruti Sharma, Additional Advocate General Harinder Singh Rawat.

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Code of Criminal Procedure

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