Case BriefsHigh Courts

The parents together are a young child’s world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.

But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple. 

It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be. 

Allahabad High Court: J.J. Munir, J., observed that

What is important while deciding the issue of custody between two natural guardians, is where the minor’s welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned.

The instant petition was filed for a writ of habeas corpus, instituted by Master Anav’s mother, the first petitioner, asking the Court to liberate the minor from his father’s custody by entrusting the minor into hers, is about a young child’s devastating world.

Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry.

Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home.

The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce.

Further, it was stated that Meenakshi after the above settlement went back to her mother’s home along with her young son, Anav. After some time petitioner 1 claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband with two making it common cause to oust her minor son from her mother’s home.

While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the respondent 6 to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property.

In light of the above motive, Meenakshi was beaten up and her son was snatched away, leading to locking up Meenakshi.

Later Anav was handed over to Meenkashi’s husband.

Analysis and Decision

Bench observed that the mother of the minor came up with serious allegations about her son being kidnapped by force by her brother and being delivered into her husband’s custody.

Court found no tangible evidence in regard to the child being forcibly removed from mother’s custody.

The minor is a young child of tender years. He is just four years old. The Court did not find him capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be.

Amongst many things that this Court noticed is the fact that the father is not, particularly, interested in raising the minor.

A perusal of the settlement between the parties contained clause wherein it was specifically stated that the minor, Anav, then aged two and a half years, would stay in his mother’s custody.

The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility.

Mother’s right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was held that

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

Court added to its observation in custody matters that,

But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.

Bench noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. Court found that the mother in the present case is more educated than the father.

Adding to the above, Court also stated that:

The mother, being found fit to have the minor’s custody, it cannot be the best arrangement to secure the child’s welfare, or so to speak, repair his devastated world. He must have his father’s company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

Hence, the habeas corpus writ petition was allowed in view of the above discussion. [Meenakshi v. State of U.P., 2020 SCC OnLine All 1475, decided on 02-12-2020]


Advocates who represented the parties in the matter:

Counsel for Petitioner:- Sushil Kumar Sharma, Mohit Kumar

Counsel for Respondent:- G.A., Amar Nath, Shravana Kumar Yadav

Case BriefsHigh Courts

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., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, 2018 SCC OnLine P&H 1682, order dated 02-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Anthony Dominic, CJ and Dama Seshadri Naidu, J. decided a public interest litigation, wherein it declined to issue guidelines for objective assessment in a scientific manner for the court or other authorities concerned to decide issues relating to custody of children.

The petitioners were estranged husbands involved in cases relating to custody of children, pending before the Family Court with their wives as opposite parties. Grievance of the petitioners was that they often faced adverse orders in matters of visitation rights, interim custody of wards, guardianship and other such issues, before the Family Court. They submitted that the orders passed by the Family Court lacked objective assessment based on scientific criteria and were often passed purely on the subjective satisfaction of the Judges; the ‘interest of the child’ quite often became a casualty. Learned counsel for the petitioners impressed upon the need of laying down scientific guidelines by the High Court for an objective assessment of the welfare of the child which should be prime consideration in disputes of such nature.

The High Court, after duly considering the submissions made on behalf of the parties, held the law to be well settled that in a case where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. Further, in disputes of such a nature, the Court has to appreciate the issue as a whole, and not by going entirely on the legal rights of the parties. The exercise of such a discretionary power by a Court could not be curtailed by issuing any guidelines, as was sought by the petitioners. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so.

In such circumstances, the Court held that no such relief as prayed for by the petitioners could be granted and therefore, the petition was dismissed. [Sachin Narayanan Pillai v. State of Kerala,2018 SCC OnLine Ker 1460, decided on 21.3.2018]

Case BriefsHigh Courts

Delhi High Court: While deciding the instant review petition wherein the issue was raised that whether the either parties during the trial can use the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case the process fails. The petitioner further raised a grievance against the decision of this Court dated 07.02.2017 holding that the reports furnished by the Counselor and Mediator were not confidential and will not fall within the bar of confidentiality. Allowing the petition it was observed by the Division Bench of S. Ravindra Bhat and Yogesh Khanna, JJ., that ‘confidentiality’ is the essence of mediation proceedings, thus constituting “a permanent ‘dark area’ and off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception”.

As per the facts, the parties to the instant petition are disputants before the Family Court claiming guardianship of the son born to them. In order to resolve the dispute amicably, the parties opted for Mediation which unfortunately failed. The Counselor appointed by the Mediator submitted its report to this Court thereby causing the decision of 07.02.2017. The counsel for the petitioner Prosenjeet Banerjee referring to the Delhi High Court Mediation and Conciliation Rules, 2004, Conciliation Rules of United Nations Commission on International Trade Law (UNCITRAL) and Mediation Training Manual issued by the Supreme Court, argued that mediation is purely a confidential process and anything said or any view expressed by the parties; or documents obtained etc in the course of the process, need not be a part of the mediation report especially when the mediation has failed. It was also argued that the Mediator was not authorised by the Court to refer the dispute to the Counselor. The respondents via Inderjeet Saroop put forth before the Court that the Counselor’s report is only to be referred for the purposes of appreciation of the parties’ stand vis-à-vis their child and urged the Court to exercise it’s parens patriae jurisdiction for the benefit of the child.

Perusing the contentions and facts and referring to the various Rules and Conventions namely UNCITRAL Rules, Arbitration and Conciliation Act, 1996 etc. all highlighting the confidentiality aspect of mediation, the Court observed that a Mediator is not an amicus curiae and therefore the process itself involves a neutral third party who in a non- judgmental fashion acts as a facilitator for the disputants to reach an agreement. Therefore mediation process depends upon maintaining confidentiality at all times till the end of the proceedings, thus a mediator cannot file reports to the Court especially when the process has failed. Mediators cannot involve experts or counselors in the process and if any need arises, the parties must approach the Court to explain requirement and the Court in such cases may use its discretion under Section 12 of the Family Courts Act, 1984. In case a counselor is appointed, a mediator shall not present when the parties are interacting with the counselor and interactions of the counselor and Court should be confidential as well. Based on the observations, the Court directed the Family Court to

disregard the reports of the Mediator and Counselor when it will determine the case upon its merits. It was also held that the said report will not be a subject of debate or argument. [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 12156, decided on 11.12.2017]

Case BriefsHigh Courts

Madras High Court: While disposing of an appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Single Bench of R.M.T. Teekaa Raman, J. held that a gift by a father to his minor child can be accepted by child’s mother under the Mohammedan Law.

 The plaintiff had filed a suit for partition and for permanent injunction against the defendants restraining them from alienating the suit properties. The plaintiff contended that suit properties were acquired by Hashim Saheb who possessed the same till he died intestate on 12.06.2004. The plaintiff and the third defendant were daughters,  Defendants 1 and 2 were sons and the fourth defendant was the widow of Hashim Saheb. The trial court found that Hashim Bai had executed a gift settlement in respect of most of the suit properties to his sons and thereby refused the relief of partition as claimed by the plaintiff. The plaintiff, in appeal, contended that at the time of execution of the Gift Deeds, the second defendant was minor and his mother had represented on his behalf and hence the same was not valid as under Mohammedan law women have no rights to act as guardian.

The High Court noted that Section 359 of Mulla’s Principles of Mohammedan Law which governs the guardianship of the property of the minors, describes that only the father or father’s father can act as a guardian. Further, the general rule under Section 156 requires that a gift to a minor by a person other than his father or guardian will be completed by delivery of possession to the father or guardian. However, the instant case falls under Section 155 which omits the requirement of transfer of possession when a father gifts property to his child. On a conjoint reading of Section 155 with that of Section 359, the Court concluded that when mother was the only person who could look after the interest of the minor, acceptance of the gift by the mother was not invalid, and in such cases, the completion of the gift for his benefit is to be the sole consideration. [Shamshed Begum v. Sadiq Basha, 2016 SCC OnLine Mad 16883, decided on December 22, 2016]