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Mother Denied Custody of Child

Court: Punjab-Haryana High Court


Dalip Singh vs Suman Devi And Another on 29 May, 2009

Law Point:
Moral and Ethical Values are More Important than Physical Comforts. Mother Denied Custody of Child


This is an unfortunate case where the custody of a minor child is in dispute amongst his parental and maternal grand-fathers. Another disturbing factor in the case is that mother, maternal grandmother and one Ravinder have been convicted under Sections 30234 IPC for the murder of his father.

The petitioner before this Court is the parental grandfather of minor Lakshay Yadav son of deceased Sanjay Kumar Yadav. He filed a petition under Section 10 of the Guardians and Wards Act, 1890 for the appointment of a guardian of minor Lakshay Yadav. The application for interim custody of the child was also filed on 3.10.2006. Initially, on 12.10.2007 on the statement of respondent No. 1, it was directed that Master Lakshay Yadav will be got admitted in Somany Vidyapeeth Public School at the expenses of the petitioner, however, during vacations, he will join his mother in jail. The petitioner being aggrieved against the direction to the effect that the child shall join his mother during vacations filed application for review of the order, which was followed by another application keeping in view the development during the pendency of the first application that the trial in the criminal case had concluded in which the mother, maternal grandmother and one Ravinder were convicted for the murder of the father of Master Lakshay Yadav. However, his maternal grandfather, who was also one of the accused, was acquitted. Another application was filed by respondent No. 1-mother with the plea that the child is handed over to India Vision Foundation which is being run by Dr. Kiran Bedi to enable it to take care of the education of the child, however, during vacations, the child may go to the house of maternal grandfather.

CR No. 1703 of 2009 [2] The learned court below vide separate order dated 19.1.2009, while accepting the application filed by respondent No. 1 directed that Master Lakshay Yadav be admitted in India Vision Foundation whereas the review application filed by the petitioner was dismissed. It is these orders which are under challenge before this Court.

Learned counsel for the petitioner submitted that dispute is regarding custody of Master Lakshay Yadav is 7 years of age. His mother, maternal grandparents and one Ravinder were accused of the murder of his father. During the pendency of the petition before the learned court below, after the conclusion of the criminal trial, though the maternal grandfather was acquitted, mother, maternal grandmother and another person-Ravinder were convicted under Sections 30234 IPC and at present, they are undergoing imprisonment. Under these circumstances, it would be totally unsafe for the future of the child to let him remain in their custody in permeative years of life, as they will poison his mind. The child, unfortunately, has spent early age of his life with his mother in jail, where she must have done that act. Mere fact that the entire family was accused and mother, maternal grandmother have been convicted is enough to deny them the custody of the child considering his future. The petitioner was earlier also ready and willing to bear the expenses of study of the child in Somany Vidyapeeth and even now wherever he studies, the petitioner is ready and willing to pay expenses for his education, but during vacations, he should be directed to live with him and not with the family of his mother, who were guilty of killing his father.

In response to the contentions raised by learned counsel for the petitioner, learned counsel appearing for respondent No. 1 submitted that mother is the best person to take care of the welfare of the child and considering this fact, she had got him admitted in India Vision Foundation, which takes care of the children like Master Lakshay Yadav. Earlier she had consented for admission of the child with Somany Vidyapeeth Public School, however, the petitioner did not get him admitted, rather filed an application for review of the order which was totally uncalled for. The maternal grandfather of the minor child has been acquitted, meaning thereby that there is no stigma on him. The fact that he was an accused should not prejudice in the process of decision making regarding the custody of the child. Even maternal grandfather is the best person, who can take care of the child. He further submitted that it is an interim arrangement, which has been made by the learned court below and the petition can very well be decided at the earliest. The petitioner can meet the child any time during visiting hours and if the child so desires, he can go with the petitioner.

CR No. 1703 of 2009 [3] Heard learned counsel for the parties and perused the record. Before I deal with the facts of the present case, a reference to the judgment of Hon’ble the Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 would be quite relevant where the issue under consideration was regarding the custody of the minor child. In the aforesaid judgment, it was opined that the only consideration in such case is “welfare of the child” and not even the rights of the parents. The Court has to consider and give due weight to the child’s ordinary contentment, health, education, intellectual development, and favorable surroundings but over and above physical comforts, the `moral and ethical values’ have also to be taken care of. Relevant paras thereof are extracted below:

“43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force.

44. The aforesaid statutory provisions came up for consideration before courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.

45. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR 1941 Bom. 103, the High Court of Bombay stated: (AIR p. 105) “…. It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration……”

(emphasis supplied)

46. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.

CR No. 1703 of 2009 [4]

47. Again in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) SCC 544, this Court reiterated that the only consideration of the court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the court. Mature thinking is indeed necessary in such a situation to decide what will enure to the benefit and welfare of the child.

48. Merely because there is no defect in his personal care and his attachment for his children- which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human rights so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

49. In Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw v. Arvand M.

Dinshaw, (1987) 1 SCC 42 and Chandrakala Menon v. Vipin Menon (Capt.), (1993) 2 SCC 6.]

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, the court has to give due weightage to the child’s ordinary CR No. 1703 of 2009 [5] contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than others.

51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parents patriae jurisdiction arising in such cases.”

If the facts of the present case are considered in the light of enunciation of law referred to above, in my considered opinion, it is a case where the respondent as well as her family should be kept away from the child, as there is every likelihood of their poisoning the mind of the child against the family of his deceased father. Once a girl is married and she moves on to her matrimonial home, she belongs to that family. The children, born out of the wedlock, are considered as part of that family and not of the family of the mother, who are merely the relatives thereafter. In the present case, the admitted facts on record are that for the murder of the father of the child, his mother, maternal grand mother and one Ravinder have been convicted. Though maternal grand father was also one of the accused and remained in judicial custody for some time, however, finally he was acquitted. But even his acquittal will not detain this court to prima facie opine that future of the child, who is in his tender age, will be in safe hands with the respondent or her family members. The primary consideration at the early age of life is to inculcate moral and ethical values in the child besides taking care of his educational needs. In a family, where two persons including the mother of the minor child have been convicted for the murder of the father of the child, no one can expect that surroundings therein would be conducive enough for inculcating good moral and ethical values, rather, chances are that mind of the child may be poisoned against his paternal family, as is evident even now. Moreover, the child belongs to the family of the petitioner and not to respondent No. 1.

Learned counsel for the petitioner had stated that wherever the child is studying at present, he is ready and willing to bear entire expenditure for his education and hostel etc. and the same will appropriately take care of his education. The child needs the atmosphere of love and affection. He cannot be left CR No. 1703 of 2009 [6] in the family of criminals, where there may be feeling of hate and revenge.

As far as interim custody of the child is concerned, in my opinion, the learned court below was totally insensitive to the future of the child in granting interim custody of the child to the maternal grand father, who was one of the accused, though acquitted later on, for the murder of the father of the child and totally ignoring the claim of the petitioner.

According the impugned orders dated 19.2.2009, passed by the learned court below, are set aside and it is directed that interim custody of the child during vacations will remain with the petitioner. However, during visiting hours in the school/hostel, where the child is studying/living, the petitioner as well as the maternal grand father can meet with prior intimation to the authorities, who shall ensure that there is no clash of time in meeting of both the parties and they come at different times.

Parties through their counsels are directed to appear before the learned court below on 6.6.2009. Before the courts close for summer vacations from 16.6.2009, the learned court below will ensure that custody of the child is handed over to the petitioner.

The revision petition is disposed of in the manner indicated above.