Custody – Claim of – Appellant-father, only surviving biological parent seeking custody of the minor daughter from the alleged unlawful custody of his sister-in-laws – Husband lost his wife just ten days after the birth of their daughter and thereafter, his father due to Covid-19 – Due to the loss, the father handed over the custody of his minor daughter to his sister-in-law as an interim arrangement, however, his son who was relatively older was with him – Subsequently, on his remarriage, he sought custody of his minor daughter, but was refused – Father filed petition under the 1890 Act, seeking custody of his minor daughter but the case was withdrawn – Father then filed habeas corpus petition seeking custody – High Court disposed of the petition granting liberty to the parties to approach the family court – Correctness:
Held: In matters of the custody of minor children, the paramount welfare of the child is seen – There cannot be any straightjacket formula – Also, no hard and fast rule can be laid down as regards the maintainability of the habeas corpus petition in the custody matters of minor child – Exercise of jurisdiction by the writ court u/Art. 226 or not would depend on the facts and circumstances of each case – Merely because of the unfortunate circumstances, sister-in-laws were given the temporary custody of the minor child to nurture the infant and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant-her only natural guardian – Subsequently, the appellant remarried – Now, he and his wife can very well look after the minor girl – Perusal of the photographs reveal that the minor child has gelled well with the family – Appellant is well educated and employed as Government Official in Delhi, having residence in Delhi whereas the sister-in-law to whom the custody of the child was handed over is residing at a remote village – Appellant apart from taking care of his children, can very well provide the best of the education facilities to his children – Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother – Even in order to ensure the welfare of the minor child, she should live with her natural family – Minor child would get adapted to her natural family very well in a short period – Thus, impugned judgment and order of the High Court quashed and set aside – Sister-in-laws to handover the custody of the minor child, however, permitted to meet her at the residence of the appellant at the given time – Constitution of India – Guardians and Wards Act, 1890. [Paras 11-17]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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