Custody of child is given to father

Bombay High Court: Allowing the writ of Habeas Corpus, a bench comprising of P.V. Hardas and A. S. Gadkari, JJ ruled that since a father is the natural guardian of the child in the absence of the mother, hence custody of the child should be handed over from the maternal grandparents of the child to the petitioner. In the present case, the petitioner was accused of killing his wife but was acquitted of all charges by the trial court. He had filed a writ petition in the High Court to take custody of his two and half year old son after all efforts to procure his son from his grandparents failed. The Counsel for the respondent referred to the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi [(1992) 3 SCC 573] filed under the relevant provisions of the Guardians and Wards Act, 1890 where the father of the children was facing charge under Section 498-A of the IPC and the children had expressed their willingness to remain with their maternal uncle and also expressed that they do not wish to live with their father. In this background the Supreme Court held that though the father being a natural guardian had a preferential right to the custody, but after talking to the children and assessing their state of mind it would be in their interest and welfare to hand over their custody to their maternal uncle instead of their father.

The High Court, however, held that the ratio of the above judgment would not be appreciable in the present case as the petitioner has been acquitted of all charges and ordered the respondent-grandfather to hand over the custody of the child. The Court observed that the question as to whether the welfare of the minor would warrant the handing over the custody of the minor to any other person is a question which can only be decided after the evidence of the parties is recorded and certainly not in this petition of Habeas Corpus. The Court ruled that the respondents are at liberty to file a case under the Hindu Minority and Guardianship Act, 1956 for claiming custody of the minor child but presently the petitioner being the father cannot be deprived the custody of his minor child. [Amol Ramesh Pawar vs. State of Maharashtra, Criminal Writ Petition No. 1698 of 2013, decided on February 27, 2014]1


CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1698 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Amol Ramesh Pawar

versus

1. The State of Maharashtra

CORAM : P.V. HARDAS AND
A.S. GADKARI, JJ.

27 February 2014.
ORAL JUDGMENT (Per P.V. HARDAS, J.) :
Rule. Rule, made returnable forthwith. With the consent of learned
counsel for the parties, this Petition is heard finally at the stage of

admission.
By this Petition under Article 226 of the Constitution of India the
2.
Petitioner, the anguished father of the minor child aged two and half years
seeks the custody of the child who is presently in the custody of
Respondent No.6.
It appears that the Petitioner was married to the
daughter of Respondent No.6 on 23 November 2010. From the wedlock,
the wife of the Petitioner gave birth to Tejas on 20 November 2011. The
ig
wife of the Petitioner died on 21 March 2012 due to burns. A complaint
was accordingly lodged against the Petitioner, and Petitioner and others
were prosecuted for the said offence.
The Additional Sessions Judge at
Satara acquitted the Petitioner and others for the offence punishable under
Section 498 A, 302(2) read with Section 34 of the Indian Penal Code.
According to learned counsel for Respondent No.6 against the judgment
of the Additional Sessions Judge dated 26 April 2013 in Sessions Case
No.120 of 2012 an appeal against acquittal has been filed in this Court.
3.
According to the Petitioner after he was acquitted the Petitioner
made attempts at securing the custody of his minor son Tejas, but
Respondent No.6 did not respond and the Petitioner left with no other
alternative, has filed the present petition. The Petitioner therefore prays

for custody of his minor son Tejas who is presently been looked after by
Respondent No.6 be handed over to him.
4.
Counsel appearing for Respondent No.6 has urged before us that
the conduct of the Petitioner disentitles the Petitioner from claiming any
discretionary relief from this Court. According to counsel for the Petitioner
the Petitioner did not bother to seek the custody of the minor child even
when he was released on bail and even thereafter when he was acquitted

by the Trial Court. Counsel appearing for Respondent No.6 has further
urged before us that the Petitioner had remarried and his second wife has
also left the Petitioner. There is no other person in the family who can look
It is lastly urged before us by counsel for
after the minor child.
Respondent No.6 that the minor child is being well looked after by
Respondent No.6 and the welfare of the child which is the paramount
consideration at the time of handing over of the custody would require that
the custody of Tejas be retained by Respondent No.6.
5.
Counsel for Respondent No.6 has referred to the judgment of the
Supreme Court in Kirtikumar Maheshankar Joshi v. Pradipkumar
Karunashanker Joshi1. This was a case arising from the Guardians and
Wards Act and the Supreme Court found that the father of the child was
1 (1992) 3 SCC 573.

facing charge under Section 498-A of the Indian Penal Code and the
children had expressed before the Supreme Court their willingness to
remain with their maternal uncle who according to the children was looking
after them very well and the children had also expressed that they do not
wish to live with their father. In that background therefore the Supreme
Court came to the conclusion that though the father being a natural
guardian, has a preferential right to the custody, but after talking to the
children and assessing their state of mind, the Supreme Court held that in

the circumstances it would be in the interest and welfare of the children to
hand over their custody to their maternal uncle instead of to their father.
Counsel for Respondent No.6 has further referred to the judgment of
6.
the Learned Single Judge of the Allahabad High Court. The Learned
Single Judge of the Allahabad High Court found that the two and half
months child was living with the in-laws of the Petitioner on account of
death of their mother. The Learned Single Judge took into consideration
the welfare of the child and found that since the child was being properly
looked after in the maternal home and the family having sufficient means
as well as means to provide proper educational facilities, the father of the
child was held not entitled to his custody. The Learned Single Judge of
the Allahabad High Court, however, held in favour of the Petitioner that

resort to the remedies available under the Hindu Minority and
Guardianship Act was no bar for entertaining a petition for habeas corpus.
7.
Counsel for Respondent No.6 has further referred to the judgment of
the Division Bench of the Madras High Court in G. Eva Mary Elezabath v.
Jayaraj2. This was regarding the custody of a minor child aged one month
who had been abandoned by father in Church premises immediately on
death of his wife. The custody of the child was accordingly handed over to

the Petitioner who took care of the child for two and half years. The father
of the child though a natural guardian therefore was declined the custody.
In the light of the present facts, the ratio of the aforesaid judgments,
8.
in our opinion, would not be applicable to the present case.
9.
The Petitioner being the father of the child is the natural guardian.
The Petitioner was prosecuted for an offence punishable under Section
498-A and 302 of the Indian Penal Code.
The Petitioner has been
acquitted of the said offence by the judgment of the Additional Sessions
Judge, Satara in Sessions Case No.120 of 2012 by judgment dated 26
April 2013. Since the judgment is of the year 2013 and practically 22
months have passed, no appeal against acquittal was filed by the State.
2 AIR 2005 Madras 452.

Counsel for the Respondent now informs us that an appeal against
acquittal has been filed in the Court by Respondent No.6. However, since
the Petitioner has been acquitted and the Petitioner is the natural guardian
of the minor child, the Petitioner cannot be deprived from obtaining the
custody of his minor child. If the Respondents feel that the Petitioner is
disentitled to continue the custody of the minor, the Respondents may
avail the remedies available in law.
The question as to whether the
welfare of the minor would warrant the handing over the custody of the

minor to any other person is a question which can only be decided after
the evidence of the parties is recorded and certainly not in this Petition.
The Respondent, however, would be at liberty to file appropriate
proceedings under the Hindu Minority and Guardianship Act for claiming
custody of the minor child.
The said proceedings if they are filed by
Respondent No.6 would be decided in accordance with law. Presently the
Petitioner being the father cannot be deprived the custody of his minor
child.
10.
We accordingly allow this Writ Petition and make rule absolute by
issuing the writ of Habeas Corpus directing Respondent No.6 to hand over
the custody of the minor child Tejas to the Petitioner. In the event the
custody of the minor child is not handed over to the Petitioner, we direct

the Respondent State to provide the necessary aid to the Petitioner for
taking the custody of the minor child. We accordingly direct the officer in-
charge of the Baramati Police Station to provide the necessary aid to the
Petitioner for taking the custody of the minor child from Respondent No.6.
11.
Rule is thus made absolute on the above terms with no order as to
costs.
ig
At this stage, counsel for Respondent No.6 requests that this
judgment be stayed for a period of six weeks to enable Respondent No.6
to obtain necessary orders to file appropriate proceedings for challenging
(P. V. Hardas, J.)
(A.S. Gadkari, J.)
this order. The request is declined.

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