Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, 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.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can 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. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., Habeas Corpus Writ Petition No. 1057 of 2019, decided on 27-9-2021]


Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Case BriefsHigh Courts

Bombay High Court: Stating that the welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another, Bench of N.J. Jamadar and S.S. Shinde, JJ., expressed that,

Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.

Instant petition was filed for a writ of habeas corpus to produce the son of the petitioner, who had been allegedly illegally kept away from the petitioner by respondent 2 – wife of petitioner and immediate transfer of custody of son to petitioner.

Background

As per petitioner, respondent 2 was extremely busy with her professional commitments and has not been able to devote any time for parenting and development of minor son. In contrast, petitioner had decided not to accept any professional commitment and devote his entire time, effort and attention to bring up the son.

Due to marital discord, respondent 2 allegedly prevented the petitioner from meeting the son, jeopardizing the willingness and happiness of son and even the petitioner made efforts to meet the son, respondent lodged false and motivated reports against him.

Even when the son got infected with COVID-19, respondent 2 sent him to petitioner’s house who nursed him and took care of him. The son even refused to leave the house and accompany respondent 2.

Respondent 2 along with the son absconded and on several efforts of the petitioner, he couldn’t locate respondent 2.

In view of the above background, petitioner approached the Court.

Analysis, Law and Decision

High Court while analyzing the matter stated that it is not an immutable rule of law that writ of habeas corpus, at the instance of one parent, is not maintainable if the child is in the custody of another parent, unless the custody is strictly illegal or unlawful.

Further, the Court also added that the writ of habeas corpus can also be pressed into service for granting the custody of a child to a spouse if the welfare of the child so dictates.

Who should be given custody?

To determine the question as to who should be given custody of a minor child, the primary consideration is the welfare of the minor and not the legal rights of the parents, statutory or customary.

Parents at loggerheads

Parameters for determination of the proper custody for a minor, when the parents are at loggerheads are well recognized.

Legal rights of the parents yield to the paramountcy of the welfare of the child.

Bench referred to the decision of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, wherein the Supreme Court articulated factors, which weigh-in, in determining the question of custody of a minor child.

Supreme Court’s decision of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, was also referred to, wherein the consideration for determination of the proper custody of a minor child were succinctly postulated.

In view of the above decision, Bench noted that welfare of the minor is a broad and elastic term.

 Every factor which bears upon the development of the child, must enter into the decision of the Court. Court is called upon to deal with a human problem with a humane touch.

Tender Years Rule

Bench stated that the said rule has been recognized under Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that in the case of a boy or an unmarried girl, father, and after him, the mother shall be the natural guardian; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.

Coming to the present facts and circumstances, Court expressed that it is imperative to note that having regard to the age of the son, tender year rules, which has statutory recognition, get attracted and thus cannot be brushed aside lightly in evaluating the “welfare principle”.

In Court’s opinion, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another.

In view of the facts and circumstances of the case, High Court found no exceptional circumstances which warranted a departure from “tender years rule”, nor there was such material which prima face indicated that the custody with mother was detrimental to the welfare and development of the son.

Lastly, while concluding, the Court stated that the minor son needs love, affection, care and protection of both, petitioner and respondent 2.

Love and affection of both parents is considered to be the basic human right of a child. Thus, the element of the access of the child to a non-custodial parent assumes critical salience.

Courts often ensure that even if custody is given to one parent, non-custodial parent has adequate visitation rights.

High Court stated that for the development of the sone, it would be necessary to allow the physical access of father to son at least twice a week.

Directing for daily access through video conference for half an hour and physical access twice a week of minor son to petitioner, the present petition was disposed of. [Abhinav Kohli v. State of Maharashtra, Criminal WP No. 225 of 2021, decided on 30-9-2021]


Advocates before the Court:

Swapna P. Kode i/b Tripti R. Shetty for petitioner/applicant.

J.P. Yagnik, APP for respondent 1 – State.

Hrishikesh Mundargi i/b Subir Sarkar for respondent 2.


Read more:

Minor:

1. Means a person who has not completed his or her age of eighteen years, [Section 3(c), Hindu Adoptions and Maintenance Act, 1956 (India)].

2. Means a person who has not completed the age of eighteen years, [Section 2(1)(t), Mental Healthcare Act, 2017 (India)].

Custody:

Implies guardianship. It must be a lawful custody under provisions of a statute or under order of court, Omkar Prasad Verma v. State of M.P.(2007) 4 SCC 323: (2007) 2 SCC (Cri) 293.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while allowing in part the revision petition filed challenging the Family Court’s maintenance order made a very crucial observation, that father’s obligation to maintain a child cannot come to an end once the child turns 18 years of age. Read more to know why.

Instant petition was directed against the Family Court’s Order declining maintenance to the petitioner 1/wife and granting maintenance only to petitioner 2 and 3.

Since the interim maintenance order was an interlocutory order, the respondent’s counsel submitted that the present application was barred under Section 397(2) CrPC.

Further, the counsel for the petitioners contended that after holding that each of the children is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent.

Analysis, Law and Decision

High Court stated that since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and fact which are to be proved by the parties.

Further, Bench elaborated with regard to other contention of children being entitled to 25% of salary earned by respondent, that, petitioner 1/wife who was earning and was equally responsible for the child can take care of the balance as respondent was married again and had a child from the second marriage.

Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage.

Petitioner 1/Wife was working as an Upper Division Clerk in Delhi Municipal Corporation earning Rs 60,000 per month and the two children were living with the mother and after the age of majority, entire expenditure of petitioner 2 was being borne by petitioner 1 as petitioner 2 turned major and was still studying but was not earning anything.

Therefore, the family court failed to appreciate that since the respondent was making no contribution towards the maintenance of petitioner 2, the salary earned by petitioner 1 was not sufficient to maintain herself.

Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner 2 is not yet over and the petitioner 2 cannot sustain himself.

Bench held that it cannot be said that the obligation of the father would come to an end as the son reached 18 years of age and the entire burden of his education and other expenses would fall only on the mother.

Adding to the above analysis, it was stated that It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.

Hence, Court granted a sum of Rs 15,000 per month as interim maintenance to petitioner 1 from the date of petitioner 2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier.

In view of the above, the revision petition was allowed in part and disposed of. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 3242, decided on 14-06-2021]


Advocates before the Court:

For the Petitioners: Mr Praveen Suri and Ms. Komal Chibber, Advocates

For the Respondent: Mr Digvijay Rai and Mr. Aman Yadav, Advocates

Case BriefsHigh Courts

Punjab and Haryana High Court: In a habeas corpus case regarding custody of the child the Bench of Anupinder Singh Grewal, J., refused to consider extra-marital affair as a ground to deny custody of child to the mother. The Bench remarked,

“In a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. More often than not these allegations are made without any basis or foundation. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child.”

Background

The petitioner had sought the issuance of a writ in the nature of habeas corpus for the release of her minor daughter who was alleged to be in the custody of her husband-respondent 4. Respondent 4 was an Australian citizen and the petitioner later joined him in Australia. Out of the wedlock, a girl child Jasreen Kaur Garcha was born. Later on, the petitioner and respondent 4 developed matrimonial differences which led to their separation. The parties arrived in India on 24-01-2020. It was by the petitioner that in a deep rooted conspiracy the child was taken away by respondent 4 when the petitioner had gone to her parental village. It was further contended by the petitioner that respondent 4, instead of acceding to the request of the petitioner to handover the child, started threatening her and the petitioner fearing her safety, fled back to Australia on 05-02-2020. She filed a petition for the custody of the minor child in the Federal Circuit Court, Australia and the court had passed an interim order directing respondent 4 to return the minor child to Australia.

On the other hand, respondent No.4 submitted that the petitioner was involved in a relationship with his brother-in-law which had led to marital discord between the parties. The Panchayat was convened on 04-02-2020 and it was agreed that as the petitioner had permanent residency in Australia, the custody of the child would be handed over to respondent 4. He further submitted that after her return to Australia, the petitioner had preferred an application for the custody of the child and in the application, the Australian address of respondent 4 had been mentioned although she knew that he along with their child was in India. Relying on the judgment Ranbir Singh v. Satinder Kaur Mann, 2006(3) RCR (Civil) 628, respondent 4 submitted that a decree, which had been obtained from a foreign court on the basis of a fraud would not be enforceable in India.

 Observations and Decision

Noticing that the mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, the Bench stated that the child would require love, care and affection of the mother for her development in the formative years. Similarly, the support and guidance of the mother would also be imperative during adolescence. Furthermore, the petitioner had permanent residency in Australia. She was earning Rs 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of child as well by the Australian authorities. The father was an Australian citizen. He had also obtained a diploma in Hospitality Management and was employed in Australia and only recently had come to India. He had a small piece of agricultural land and was stated to have some rental income as well.

The Bench opined that the principle of comity of courts had been followed by the Courts in India to honour and to show due respect to the judgments obtained by the Courts abroad. However, the judgment of a foreign court could not be the only factor while considering the issue of custody of a child to a parent. Reliance was placed by the Court on the decision of Supreme Court in Yashita Sahu v. State of Rajasthan, wherein the Bench had held,

In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which countrys courts will have jurisdiction. In many cases the jurisdiction may vest in two countries…Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of childs custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the childs welfare be investigated in a court in his/her own country.

Noticeably, the respondent 4 had leveled allegations pertaining to the character of the petitioner that she was in an extra-marital relationship with a relative of the petitioner. Opining that aside of the bald assertion in the petition, no supporting material had been brought before the Court, the Bench remarked that in a patriarchal society, it is fairly common to cast aspersions on the moral character of a woman. Therefore, allegations against the petitioner being wholly unsubstantiated were not considered relevant to adjudicate the issue of custody of the minor child.

Noticing that the respondent 4 had appeared initially in the proceedings in Australia, the Bench opined, it could not be said that the order was passed by the Australian Court behind the back of respondent 4 or was not in conformity with the principles of natural justice. Accordingly, the custody of the girl child was handed over to the petitioner. However, the petitioner was directed to arrange interaction of the child with respondent 4 through video conferencing and the parties were directed to abide by the orders of the Federal/Family Court in Australia.[Mandeep Kaur v. State of Punjab, 2021 SCC OnLine P&H 1060, decided on 10-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Divjyot Singh Sandhu
For the State of Punjab: DAG Dhruv Dayal
For Respondent 4: Adv. Inderpal S. Parmar

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

Madhya Pradesh High Court: S.A.Dharmadhikari J., dismissed a writ petition which was filed invoking the jurisdiction of the Court under Article 226 of the Constitution of India.

The petitioner had alleged that his son (corpus) Ali Khan was in illegal detention of respondent 5 Yasmin Bano who was the wife of the petitioner. He contended that from the initial stage itself behavior of respondent 5 towards the petitioner was not good and she used to quarrel with his mother and other family member. The counsel for the petitioner, Mr Sushil Goswami submitted that the respondent 5 came to her maternal home in Gwalior without any intimation and refused to return back and did not even permit the petitioner to meet the son. He further submitted that as per the settled legal position father has the equal right as of the mother in respect of the son.

The Court explained that child with the mother can not be said to be in illegal confinement, the Court further explained that writ petition for habeas corpus was maintainable only if the person was in illegal confinement and in exceptional circumstances and it was not to justify or examine the legality of the custody. The court observed that in the present matter custody of the child was with the mother/respondent 5 can not be said to be illegal confinement. Remedy lies only under the Hindu Minority and Guardianship Act or the Guardianship and Wards Act as the case may be.

The Court while dismissing the appeal held that it was not inclined to exercise the jurisdiction under Article 226 of the Constitution of India and the petitioner could file an application for custody of the child under the appropriate law.[Mohd. Shakil Khan v. State of M.P., 2020 SCC OnLine MP 2825, decided on 11-12-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.

The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).

The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.

It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.

Analysis and Decision

The material point for determination:

  • Whether Family Court was legally justified in granting custody of Sameera to Prakash?

Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.

Infact Prakash was the only who took care of Sameera.

One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.

It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.

Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.

Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.

Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.

Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.

Decision

Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.

Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.

In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.

Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.

Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.

Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]

Op EdsOP. ED.

Introduction

यत्रनार्यस्तुपूज्यन्तेरमन्तेतत्रदेवता:

यत्रैतास्तुनपूज्यन्तेसर्वास्तत्राफला: क्रिया: ।।

Where Women Are Honored, Divinity Blossoms There;

And Where They Are Dishonored, All Action Remains Unfruitful.

— Manu Smriti III.55-59

In November 2019, the Supreme Court issued notice to the Centre seeking its response to a public interest litigation filed by Sakshi Bhattacharya challenging Sections 6, 7 and 9 of the Hindu Minority and Guardianship Act, 1956.[1] The petitioner said:

The Act came into force in 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family.”[2]

In this background, the authors shall revisit the law regarding the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956[3].

‘Ardhangini (अर्धांगिनी)’, the status conferred upon the wives is in glaring contrast to the discriminatory treatment meted out to them in the past. India as a progressive State has enacted special laws for granting and protecting women’s rights in different spheres of their lives. Nonetheless, there still remain several laws which need to be revisited so as to bring them in tune with the contemporary socio-economic setting of our country.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956 stipulates that the father shall be the natural guardian of a boy or an unmarried girl:

6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-

(a) In the case of a boy or an unmarried girl- the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother…”

It is our perspective that there is no plausible explanation as to why a father is the first to be given the status of a natural guardian, and the mother as a natural guardian is to be considered after him. We shall now refer to the relevant sources to provide substance to our perspective.

Sources of Hindu Law – Texts and Scriptures

Scrutiny of any facet of Hindu Law is not complete without referring the ancient Hindu scriptures. Mothers or wives in the scriptures have always been held in very high regard in our scriptures. Marriage is the sacrament performed by two heterosexuals where both contribute.

Ancient religious texts have always maintained that both mother and father have crucial roles in the birth and upbringing of a child. No ancient text considers the father’s contribution to the child as more important than the mother’s contribution.

In the Puranas and Manusmriti, the contribution of parents to a child is summarised:

No Deva can equal the mother and no superior can equal one’s father. Hence, no son can get relieved of the debt he owes to them.[4]

No person can repay his parents even in 100 years for all the troubles that they go through to give birth to him and raise him to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then does any religious worship done by you will bear any fruit.”[5]

In Mahabharata, Great Bheeshma said:

The teacher who teaches true knowledge is more important than ten instructors. The father is more important than ten such teachers of true knowledge and the mother is more important than ten such fathers. There is no greater guru than mother.[6]

In the Vedas they have been referred with different designations:

Aditi (अदिति), because she is not dependent;[7] Devī (देवी), since she is divine;[8] Kshamā (क्षमा), for she is tolerant/indulgent/patient;[9] Subhdhā (शुभदा), for she is knowledgeable;[10] Vishrutā (विश्रुता), since she is learned;[11] Yoşhā (योषा), because she is intermingled with man, she is not separate;[12] Simhī (सिम्हि), since she is courageous;[13] Menā (मीना), because she deserves respect;[14]and Idā (इदा), for she is worshipable[15] and many more.

Certainly, our texts consider the role of women or mother to be of paramount importance. Women or mother contributes to the growth of an individual and prosperity of the entire family.  When the sources of Hindu Law have regarded mother’s contribution to a child’s growth and development as important as the father’s contribution, it is untenable to give primacy to the father over mother as the natural guardian of a boy or an unmarried girl.

Judicial Interpretation

Judiciary has interpreted Section 6(a) to reconcile it with the rights and interests of a mother. The issue of natural guardian and gender discrimination was first raised in Githa Hariharan v. RBI[16] where the word “after” was interpreted in a liberal way to rule that the word “after” has no significance in the section because in  cases of custody and guardianship, the court follows the doctrine of best interest of the child . Interpreting “after” as “after the lifetime” of father would be unconstitutional as it violates the principle of gender equality enshrined in our Constitution.

The word “after” does not mean “in the physical absence of the father”. The word “after” means – “absence” of the father from the care of the children, property or person; father is indifferent to the matters of children even if he is living with the mother; father is not known; father is not mentally fit or not in a situation to take care of the child. In cases like these, father can be considered to be absent and mother can be recognised as a natural guardian.

The doctrine of best interest of the child was earlier considered in  Jijabai Vithalrao Gajre v. Pathankhan ,[17]where the mother was considered to be a natural guardian of the daughter because the father had failed in his responsibility of taking care of her daughter ever since she was born.

Undeniably, judiciary having regard to the best interest of the child has relaxed the conditions for giving status of natural guardian to the mother. However, it is only when the factors laid down in the Githa Hariharan[18] case are fulfilled that a mother will be given the status of a natural guardian.

The presumption that the father is the natural guardian under Section 6(a) still remains, though such a presumption is rebuttable with regards to the circumstances of the case.

Transgression of Constitutional Provisions

Articles 14 and  15

Article 14 bars discrimination and prohibits discriminatory laws. It only means that all persons in similar circumstances shall be treated alike both in  privilege, comfort and liability imposed by the laws  or should be applied to all in the same situation and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same.[19]

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. The classification in order to be reasonable should fulfil the following tests:

  1. There must be intelligible differentia for classification which discriminates persons from others; and
  2. The differentia must have a rational or reasonable nexus with the object sought to be achieved by the Act.[20]

Clause (1) of Article 15 provides: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them.” The word ‘discrimination’ means to make an adverse distinction or distinguish unfavourable from others.[21] Article 15 provides for a particular application of a general principle that has been enshrined under Article 14.[22] Just as the principle of classification applies to Article 14 so it does to Article 15(1) as well.[23]

The main objective of the Act is the ‘Welfare of the Minor’.[24] Section 6(a) violates Articles 14 and 15 since primacy of father over mother as the natural guardian has no reasonable nexus with the objective of the ‘Welfare of the Minor’. It is baseless to presume without any reasonable justification that ‘Welfare’ is guaranteed in under the guardianship of father.

‘Welfare’ is to be understood in its widest sense and embraces not merely the material and physical well-being of the minor and happiness, but every circumstance and bearing upon the moral and religious welfare and the education and upbringing of the minor.[25] ‘Welfare’ encompasses such a myriad range of factors that it is essential to examine in each case who is in a better position to be the natural guardian. Hence, the primacy of one parent over the other does not stand the test of reasoning.

Article 21

Right to life and personal liberty are inalienable rights which have been enshrined in Article 21. These are rights which are inseparable from a dignified human existence. The  Supreme Court has been liberal in interpretation of Article 21 to include right to live with human dignity;[26] right against illegal detention;[27] right to legal aid;[28] right against sexual harassment at workplace;[29] right to speedy trial;[30] right to die with dignity;[31] right to privacy;[32] and many other rights.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,[33] the Supreme Court dealt with a matter concerning the right of the detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, to have an interview with a lawyer and the members of his family. The Supreme Court held that personal liberty also includes the right to socialise with the members of the family and friends:

There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary.”

In the contemporary socio-legal background, it can be thus be argued that the Right to Guardianship of a child falls within the purview of right to life and liberty and a parent cannot be deprived of this right without any reasonable justification.

Law Commission on Section 6 of the Hindu Minority and Guardianship Act, 1956

The Law Commission of India in its 257th Report on ‘Reforms in Guardianship and Custody Laws in India[34]  had recommended amendments in Section 6 to bring it tune with the tenet of equality enshrined in Article 14 of the Constitution. While reaffirming the recommendations of its 133rd Report[35] wherein it had made a case for removal of superiority of one parent over the other, it recommended that the Doctrine of Welfare of Children should be followed and must be the paramount consideration in every circumstance, both the father and the mother should be regarded simultaneously as the natural guardians of a minor.

Jurisprudence of Natural Guardian in English Law

The Guardianship Act, 1973 which is the legislation of England and Wales is gender-neutral, in Section 1 of Part I which talks about equality in parental rights. Section 1(1) says:

1. Equality of parental rights. – (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.”

(emphasis supplied)

English Law is impartial and more progressive than the Indian Law. Under English Law, a mother has the same rights as the father in matters concerning the custody or upbringing which is certainly not the case under Indian Law.

Conclusion

The Hindu Minority and Guardianship Act, 1956 Act was enacted in the then prevailing existing socio-economic setting in the country. The enactment of the laws, particularly the laws affecting family affairs is always affected by existing social setting of the country. On the basis of available legislative, judicial and other authoritative material difficult, it is difficult to say if the primacy of father as the natural guardian in Section 6(a) is directly linked to the assumption that men in most cases are the bread earners of their families and are thus better equipped financially to fulfil their responsibility as the natural guardian. However, this assumption would have played a part in the drafting of Section 6(a).

Drafting of such an important section in an Act should not in any case be only linked to the economic status of the parents for two major reasons. Firstly, the assumption that only men are breadwinners of their respective families is an outdated assumption. Our country has come a long in granting women their rights in various spheres of life and increasing women participation in various areas of employment.

Secondly, while appointing the natural guardian, the ‘Welfare of the Child’ is of paramount importance for the court. ‘Welfare of the Child’ encompasses a range of factors and is not limited to the economic status of the father or the mother.

From the constitutional perspective, it is expected that the Supreme Court in its role as the guardian of fundamental rights shall declare Section 6(a) unconstitutional pursuant to the PIL filed by Sakshi Bhattacharya.


Palak Maheshwari, 3rd Year, BA LLB (Hons.), Maharashtra National Law University, Nagpur.

††Aniket Pandey, 4th Year, B.ALLB (Hons.), Maharashtra National Law University, Nagpur.

[1] Sakshi Bhattacharya v. Union of India, WP (Civil) No. 1290 of 2019, order dated 13-11-2019

[2] Times of India, “Why Guardianship Act prefers father as natural guardian: PIL”, available at

https://timesofindia.indiatimes.com/india/why-guardianship-act-prefers-father-as-natural-guardian-pil/articleshow/72047088.cms.

[3] The Hindu Minority and Guardianship Act, 1956

http://www.scconline.com/DocumentLink/64flHLFr

[4]KūrmaPurāņa 2.12.36.

[5]Manusmṛti 2.227-228

[6]Mahabharata, Shantiparva, 30.9.

[7]Nirukta, 4/22.

[8]Atharva Veda 14/1/45, Yajur Veda 4/23.

[9]Atharva Veda 12/1/29.

[10]Atharva Veda 14/2.75.

[11]Yajur Veda 8/43.

[12]Nirukta 3/15/1.

[13]Yajur Veda 5/12.

[14]Nirukta 3/21/2.

[15]Yajur Veda 8/43.

[16]Githa Hariharan v. RBI, (1999)2 SCC 228.

[17]Jijabai Vithalrao Gajre v. Pathankhan, (1970) 2 SCC 717.

[18] (1999)2 SCC 228

[19] State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284.

[20]Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600.

[21] Srinivasa Aiyer v. Saraswathi Ammal, 1951 SCC OnLine Mad 272.

[22] M.P. Jain, Indian Constitutional Law 987 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[23] M.P. Jain, Indian Constitutional Law 988 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[24] Mohini v. Virendra Kumar, (1977)3 SCC 513

Gaurav Nagpal v. Sumedha Nagpal, (2009)1 SCC 42.

See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[25]In re McGrath, [1893] 1 Ch 143. See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[26]Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[27] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[28]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[29]Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

[30]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[31] Common Cause  v. Union of India, (2018) 5 SCC 1.

[32]  K.S. Puttuswamy  v. Union of India, (2019)1 SCC 1.

[33]Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608.

[34]257th Report of Law Commission of India on Reforms in Guardianship and Custody Laws in India

[35] 133rd Report of Law Commission of India on Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing a civil writ petition ruled that a daughter is an ostensible agent of her mother and as such application filed by daughter on behalf of her mother is maintainable.

Petitioners, a mother-daughter duo, were partners in the business of husband/father which was an assessee under the Kerala Value Added Tax Act. Respondent initiated proceedings to recover arrears of tax and as a part of those proceedings it attached the husband’s share in his ancestral property. Petitioner wife who had strained marital relationship with her husband filed an execution petition for return of her property and movables from him, which was allowed by the Family Court. On obtaining sale certificate for her property, she noted that the said property had already been attached by the respondent tax authority. So she filed an application before tax authorities through her daughter to take advantage of the amnesty scheme floated by Department for the defaulting dealers but her request was rejected. Assailing the said order of rejection, petitioner filed the instant petition.

Petitioner submitted that the amnesty scheme allowed any aggrieved person to apply under it and the petitioners were aggrieved persons as they had an interest in the assessee’s estate. The husband had acted vindictively and deliberately not taken benefit of the amnesty scheme as he did not want his wife and daughter to receive the property.

Respondents submitted that it was the wife had filed matrimonial proceedings and secured a sale certificate. Therefore, her daughter could not be included within the term ‘aggrieved person’ and as such application filed by daughter before tax authorities was not maintainable.

The Court observed that petitioner duo had a common cause: driven out, both had to fend for themselves. The daughter was a dependent – the mother had fought not only to secure her interest but also to secure her daughter’s interest. Therefore, the daughter was ostensible agent of her mother, who has already secured a sale certificate. Separately, as a dependent, she also had a stake in her father’s estate. In view of the above, the petition was allowed with a direction to the tax authority to consider daughter’s application afresh. [Naseera A.P. v. State of Tax Officer,2018 SCC OnLine Ker 4924, decided on 07-11-2018]