[Habeas Corpus in Child Custody] SC restores 3-yr-old daughter’s custody to Father after temporary custody with Aunt following mother’s death from COVID-19

Supreme Court: In a criminal appeal against Delhi High Court’s decision whereby the Delhi High Court disposed of the petition filed by the appellant-father, seeking to obtain the custody of his minor daughter from the alleged unlawful custody of respondent/ his sisters-in-law, by granting liberty to the parties to approach the family Court of competent jurisdiction for seeking custody of the child in question, the Division Bench of BR Gavai* and KV Viswanathan, JJ. allowed the appeal and directed the sisters-in-law to handover the custody of the minor daughter opining that at the relevant time, the father had no other option but to look upon the sisters of his deceased wife to nurture his infant child.

Factual Matrix

The appellant-father’s case was that when his daughter was only ten days old, when he lost his wife on 30-04-2021, due to Covid-19 infection. Shortly thereafter tragedy struck him once again as he lost his father on 13-05-2021, due to Covid-19. Grieving the loss of his loved ones, the appellant-father, took help his sister-in-law/ respondent No. 5, in taking care of his children. The appellant handed over the custody of his children to his sister-in-law as an interim/stop-gap solution, to see through the difficult period that he was undergoing on account of loss of his wife and father. After some time, the custody of the minor son was given back to the appellant-father, but the custody of the minor daughter was sought to be kept by sister-in-law on the ground that the girl child was still quite young and would require the care and attention of a female for few more months. Respondent no. 5, thereafter, started refusing to let the father meet his minor daughter on one pretext or the other. She also took the minor daughter to her maternal home at Belda, West Bengal, where custody of the minor daughter was handed over to respondent No. 6. The father, in the meanwhile, married again to provide his children with the care and attention of a female. He again approached respondent No. 5 to get back the custody of his minor daughter, but the same was refused again.

Aggrieved, the father filed a case under Section 10 of the Guardians and Wards Act, 1890, seeking custody of his minor daughter. He also filed two complaints, one in Delhi and the other one in Belda, West Bengal, but no action was taken on them. The writ petition before the High Court was filed seeking custody of his minor daughter from respondents Nos. 5 and Pursuant to the High Court’s order, the father withdrew his case, and the matter was referred to mediation. Taking into consideration the report of the mediator, the Division Bench arrived at an interim arrangement for visitation rights. However, vide final judgment and order, the High Court disposed of the writ petition by granting liberty to the parties to approach the family Court of competent jurisdiction.

The Court in its previous order, directed that the minor daughter shall remain in Delhi and prima facie viewed that the father had valid grounds to claim the custody of his minor daughter. The Court also gave the visitation rights to father, his second wife and his son.

Analysis and Decision

The Court referred to Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, wherein this Court was considering almost similar facts wherein, after the marriage, the wife was detected with breast cancer and the husband had fallen ill with Tuberculosis Meningitis and Pulmonary Tuberculosis. While the husband was undergoing treatment, one of the sisters of the wife took the minor child and her ailing mother to their residence in Mumbai. When the wife succumbed to her illness, the minor child continued to be in the custody of the sister of the wife and her husband. The father approached the High Court seeking writ of habeas corpus, which came to be allowed and directed the custody of the minor child to be handed over to the husband. The sister-in-law of the wife raised an objection to the tenability of the petition of habeas corpus filed under Article 226 of the Constitution of India, before this Court. The Court held that the entitlement of father to the custody of child was not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226.

In the matter at hand, the Court said that on father’s remarriage, he and his wife could look after the minor girl and the recent photographs of the visitation showed that the minor child gelled well with the family and the family of four was happy. Regarding father’s fitness, the Court noted that he was well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi. Apart from taking care of his children, he could provide the best of the education facilities to his children. The Court observed that the child lost her mother at tender age and could not be deprived of the company of her father and natural brother.

Further, the Court noted that in Nirmala v. Kulwant Singh, 2024 SCC OnLine SC 758 it was observed that no hard and fast rule could be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of minor child was concerned. Whether the writ Court should exercise its jurisdiction under Article 226 or not will depend on the facts and circumstances of each case, however, a common thread in all such judgments on custody of minor children is the paramount welfare of the child.

Hence, the Court allowed the appeal and set aside the impugned decision. The sisters-in-law were directed to handover the custody of the minor child forthwith. However, they were permitted to meet the minor child at the father’s residence every Wednesday between 04:00 pm and 06:00 pm.

Buy Constitution of India  HERE