In CRWP-7913-2020-PUNJ HC- Mother of minor child has preferential right to claim custody but utmost consideration before Court should be minor’s well being and not legal right of particular party: P&H HC Justice Sant Parkash [20-04-2022]

Read Order: Poonam Kalsi v. State Of Punjab And Others

Monika Rahar

Chandigarh, April 21, 2022: While dealing with a custody matter in respect of a three-year-old minor child, the Punjab and Haryana High Court has held that the term guardian has to be taken in its widest possible sense and has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. 

The Bench of Justice Sant Parkash also added, “The term ‘custody’ should not be interpreted in its strict sense as physical custody. Custody means custody in the sense of supervision and control over the child. The mother’s or father’s right to the custody of their minor child is no longer absolute. It is circumscribed by the consideration of the welfare of the minor… The Court should also take into consideration the preference of the minor child to stay with either parent or grandparent.”

Essentially, in this case, the marriage between the petitioner-wife and the respondent-husband was solemnized in the year 2014 and out of this wedlock, two sons aged 6 and 3 years were born. However, owing to marital discord between the parties, they started living separately. The elder son was residing with the mother (the petitioner) was the younger son- Lovepreet Singh was in the custody of the father and his family. 

It is the custody battle of the second- younger son which is the subject matter of the instant habeas corpus writ petition. 

The case of the petitioner-wife was primarily that her minor son was illegally taken into custody by the her-in-laws in connivance with her husband and that the detrimental to the growth of the child as the husband and his family members were habitual offenders (with more than 198 FIRs registered against them under the NDPS Act). It was also her case that the respondent-husband, on the provocation of his mother, physically harassed leading to the infliction of injuries on her neck. 

She also approached the Police to help her get custody of her minor child. It was also her case that the detenue Lovepreet Bains was around the age of three years therefore, the petitioner being the biological mother was entitled to her custody. 

On the other hand, the State Counsel argued that the child concerned was not in illegal custody of the respondent. Further, it was submitted that the petitioner was required to adopt the legal procedure under the Law of Guardianship for taking the guardianship of the child by filing suit in the competent court of law. 

The case of the husband and his family was that the present writ was nothing but an “abuse of the process of the law”. It was further added that if the petitioner was aggrieved by the custody of the minor son with the husband and family, then recourse could be had (by her) to “equally efficacious” remedy of filing a petition under the Guardians and Wards Act, 1890 for custody of such minor. It was also argued that the respondent-husband was well off financially and thus was in a position to provide for the child. Lastly, while citing relevant precedent on the subject, the respondents submitted that while deciding the custody of a minor, prima facie consideration is paramount welfare of the child and custody is not to be decided upon the rights of the parties under the law. 

At the very outset, the Court dealt with the issue of maintainability of the petition. In this respect, the Court was of the opinion that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. Justice Parkash asserted that in custody matters, the paramount consideration is the welfare of the child, and thus technical objections should be condoned and the courts should decide the issue of custody only on the basis of what is in the best interest of the child. 

Thus, on the issue of maintainability, the Court reached the conclusion that the writ of habeas corpus for custody of the minor child is certainly maintainable. 

Next, the Court proceeded to address the question of whether the custody of the minor child was illegal or improper keeping in view the peculiar circumstances of the case. Regarding this issue, the Court made reference to the Supreme Court to observe that the Top Court granted the custody of the children to their mother till the family Court disposed of the petition for the custody of the children.

The Bench said, “It is true that mother being a natural guardian of a minor child has a preferential right to claim custody of her son. However, the utmost consideration before this Court is the well being of the minor and not the legal right of a particular party.”

Further, the Court observed that in the case of custody of a minor, paramount consideration as contemplated under Section 7 of the Guardians and Wards Act, 1890 is relevant to take note of. From the perusal of this Section, the Court was of the considered view that the most important consideration which must always weigh with the Court in making orders for the appointment of guardians of minors is the welfare of the minor, and in that view of the matter, the legal rights of the mother, in the case in hand, must be understood subject to provisions of Section 7.

Elaborating upon this contention alone, the Justice Parkash added, “Under Section 7 of the Act, the Court should be guided by the sole consideration of the welfare of the minor, and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case.”

Additionally, reflecting on the duty of the Court, it was opined that the duty of a court exercising its parens patriae jurisdiction as in cases involving custody of minor children is all the more onerous, and sentiments and welfare of the minor are supreme considerations which cannot be ignored. 

On the conduct of the petitioner, the Court noted that she filed multiple complaints against her husband and his family members. However, the Court noted that the Husband was acquitted (by Judge, Special Court, Jalandhar) of the charges under Sections 15 and 25 of the NDPS Act. 

On the conundrum between the right of the mother (or parents) and the welfare of the child, the Court opined that the mother being a natural guardian of a minor child has a preferential right to claim custody of her son, however, the utmost consideration before the Court is the well being of the minor and not the legal right of a particular party. 

Justice Parkash said, on the interpretation of the term “guardian” that this term has to be taken in its widest possible sense and it has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. On the ambit of the term ‘custody’, the Court added that it should not be interpreted in its strict sense as physical custody, rather custody means custody in the sense of supervision and control over the child. 

The mother’s or father’s right to the custody of their minor child is no longer absolute and it is circumscribed by the consideration of the welfare of the minor, held the Court while opining that the Court should also take into consideration the preference of the minor child to stay with either parent or grandparent.

Hence, the Court held that custody of the father as a natural guardian could not be said to be illegal or unlawful and therefore, it would not be appropriate to issue a writ of habeas corpus in favour of the petitioner. 

Lastly, it was adjudged, “In view of the observations made above, this Court finds that the minor child, namely Lovepreet Bains, has not been kept in illegal custody of private respondents. Finding no merit in the instant petition, the same is dismissed with liberty to the petitioner to approach an appropriate court under relevant provisions of law seeking the relief claimed in this petition.”