In CRWP-2082-2022- PUNJ HC- Issue of child custody is very sensitive, says P&H HC while denying custody of minor daughter to father accused of having driven his wife to commit suicide Justice Harnaresh Singh Gill [20-04-2022]

Read Order: Somvir v. State of Haryana and Others

Monika Rahar

Chandigarh, April 25, 2022: While dealing with a habeas corpus petition filed by the petitioner-father seeking custody of his minor daughter from her maternal grandparents, the Punjab and Haryana High Court has held that the petitioner, who is accused of having driven his wife to commit suicide, cannot be granted any equitable relief when it comes to handing over him the custody of the minor child. 

The Bench of Justice Harnaresh Singh Gill added, “Rather, the culpability of the crime, he is accused of, would not only emotionally devastate and destruct the growing years of the minor, but would completely compromise her overall mental growth.”

The petitioner, by way of this petition for habeas corpus, sought custody of his daughter Nisha aged 3 years, alleging that private respondents illegally took away her and as such, the minor child was in the illegal custody of the said respondents. The petitioner is the father of the minor child who is in the custody of his maternal grandparents and uncle. 

Essentially, in this case, the petitioner was married to Preeti Sharma who committed suicide by hanging, in the year 2021 after being married for four years. As a result, an FIR under Section 498-A and 304-B IPC was registered against the petitioner alleging that Preeti Sharma committed suicide on account of the torture and harassment caused by the petitioner for bringing less dowry and that the death of Preeti Sharma, was found to have occurred not under the normal circumstances.

The petitioner’s case primarily was that as per law, he being the father and natural guardian of the child, was entitled to the custody of the child and because he was deprived of the same by the respondents, his petition should be allowed. The petitioner also submitted that he was willing and available to take care of his daughter. 

The Court at the very outset noted that the petitioner’s wife committed suicide barely within four years of their marriage and that the police prima-facie found that the death did not occur under the normal circumstances leading to the registration of the aforesaid FIR under Sections 498-A and 304-B IPC against the petitioner.

When confronted with the aforesaid factual position, the petitioner’s counsel stated that the petitioner must be considered to be innocent until proven guilty and thus, on that ground of registration of this FIR alone he could not be denied the custody of his child, which he was otherwise legally entitled to. 

The Court found this plea to be suffering from fallacy and said, “The issue of custody of the child is a very sensitive and has to be dealt with after taking into consideration the paramount welfare of the child. The petitioner, who is accused of having driven his wife to commit suicide, cannot be granted any equitable relief, when it comes to handing over him the custody of the minor child. Rather, culpability of the crime, he is accused of, would not only emotionally devastate and destruct the growing years of the minor, but would completely compromise her over all mental growth.”

Even otherwise, the Court observed that the child was in the custody of the maternal grandparents and maternal uncle who could not be termed to be foreigners to the custody of the child and in fact in the view of the Court, they were the best people to take care of the child in the circumstances of this. 

Further, the Court made reference to the Judgment of the Supreme Court in Nil Ratan Kundu and another v. Abhijit Kundu wherein it was held that the paramount consideration in the matter of custody of the child, would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favorable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered.

It was also held in this case that the pendency of a criminal case, wherein the father has been charged with causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed. 

Thus, the Court was of the considered opinion that the petitioner being the accused of having driven his wife to commit suicide, could not be handed over the custody of the child, as such course of action was not considered to be of paramount welfare of the child.