Exploring a crucial Supreme Court judgement focusing on guardianship rights and the welfare of the child. The case delves into the balance between legal rights and the best interests of the child. Stay tuned for insights on this significant legal ruling.
Facts
- Zelam was diagnosed with breast cancer and tuberculosis during her pregnancy in May 2017.
- Zelam and the father were blessed with a daughter named Shikha on 14-08-2017.
- Appellants, including Zelam’s sister and brother-in-law, took care of Shikha during Zelam’s illness.
- Zelam passed away on 17-10-2018, leaving the father as the only surviving parent.
- Father, being a post-graduate working with Wipro, approached the High Court seeking custody of Shikha.
- High Court granted custody to the father considering the best interests of the child.
- Despite granting custody to the father, access was also given to the appellants due to their efforts in caring for the child.
- Various shifts in residence between Pune and Mumbai occurred during the custody period.
- The High Court of Bombay ruled in favor of the father, considering him as the surviving parent.
- The custody of the child was deemed to be in the best interest of the child’s welfare.
- The High Court issued a writ of habeas corpus directing the appellants to hand over the custody of the minor child to the father.
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Arguments
- The appellants argue that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father has the paramount right to the custody of the children.
- They claim that the welfare of the minor child should be the sole consideration in deciding custody matters, not just the legal rights of the parties involved.
- They cite various cases and judgments to support their argument that the welfare of the child should override legal guardianship rights.
- The appellants contend that the High Court should have directed the father to initiate appropriate proceedings in the civil court instead of granting custody through a writ of habeas corpus.
- They highlight that the child has been in the care of the appellants for over a year, and it should be considered in the best interest of the child to remain with them.
- They argue that the issuance of a writ of habeas corpus should be reserved for cases of illegal detention, and since the child was willingly handed over to the appellants by the ailing mother, it is not applicable in this scenario.
- The High Court has the power to exercise jurisdiction under Article 226 of the Constitution of India.
- The High Court was justified in allowing the habeas corpus petition filed by Gohar Begum and Manju Malini Sheshachalam.
- As per Section 6 of the Hindu Minority and Guardianship Act, the father is the natural guardian.
- Refusal to hand over the custody of the child amounts to illegal detention.
- Although the father has a preferential right to custody, the welfare of the child must also be considered.
- Custody by the appellants cannot be deemed illegal or improper detention in this case.
- Habeas corpus was the proper remedy to seek redressal in the given circumstances.
- Writ of habeas corpus is used to secure the liberty of the subject from illegal detention.
- The writ can also restore custody of a minor to their guardian when wrongfully deprived.
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Analysis
- In the appointment or declaration of a guardian for a Hindu minor, the welfare of the minor is the most important consideration.
- The natural guardian of a Hindu minor, in respect of both the person and property (excluding joint family property), is the father for a boy or unmarried girl, and then the mother.
- If the court believes that the appointment of a particular person as guardian will not be in the best interest of the minor, they shall not be entitled to guardianship under this Act.
- The court emphasized on the welfare of the child as the paramount consideration in determining custody.
- The appellants, being relatives, taking care of the child for some time does not grant them legal custody.
- The father, as the natural guardian, has the right to seek custody under extraordinary remedies like habeas corpus.
- The High Court made an error in not considering the father’s justified claim for custody.
- The court rejected the contention that the child should be handed over after a few years, stressing the father’s entitlement to immediate custody.
- The writ of habeas corpus is maintainable when the detention of a minor is illegal or without lawful authority.
- An elaborate inquiry may be directed by the court if necessary, otherwise determinations are made based on affidavits in writ courts.
- The rights of parties in custody matters are determined with a focus on the welfare of the child, not just the legal technicalities.
- The father being fit and able to care for the child, should not be denied custody based on mere contentions of lack of support.
- The fact that the child was with the father shortly after birth is considered along with the father’s capability to provide care.
- The need for female support as contended by the appellants is not substantial enough to deny custody to the father.
- The circumstances under which the child went to the appellants’ custody were acknowledged as unavoidable due to the father’s health conditions.
- Legal rights of custody under specific acts like the Hindu Minority and Guardianship Act are pivotal in determining custody disputes.
- The court underlines that the welfare of the child should be the sole criteria in custody matters, regardless of legal rights and technicalities.
- Enforcement of foreign court orders should align with the welfare of the child above all else.
- Habeas corpus cannot be used solely for enforcing foreign court orders, other legal remedies should be explored accordingly.
- The Supreme Court held that under Mohammedan Law, the appellant (Gohar Begum) is entitled to custody of her illegitimate daughter, regardless of the father’s identity.
- The Supreme Court noted that the mother of an illegitimate female child is entitled to custody under Mohammedan Law.
- The court emphasized that the welfare of the minor child is of paramount importance, surpassing mere legal claims of the parties involved.
- The High Court directed the mother to hand over custody to the father in one case mentioned.
- Various judgments were referenced to highlight that the welfare of the minor child should be the primary consideration in custody cases.
- The court highlighted that the well-being, education, and favorable surroundings of the child should be given due weight in custody decisions.
- Judicial observations emphasized that the moral and ethical welfare of the child should also be taken into account alongside physical well-being.
- The court’s jurisdiction is aimed at the welfare of the minor child, considering all aspects beyond just physical comforts.
- The court may direct repatriation of a minor child to their original country in specific cases.
- The court’s authority to issue appropriate orders regarding custody applies when the alleged detenu is within its jurisdiction.
- The welfare of the child is the most important factor in determining custody.
- The father has the right to have custody of his child.
- Handing over custody to the father is in the best interest of the child.
- Initial problems may arise but the welfare of the child is paramount.
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Decision
- The child custody is to be handed over to the father on a specified date and time.
- Initial access to the child for the appellants No.2 and 3 is granted for three months from 08.00 AM to 06.00 PM at the father’s residence.
- Both parties are directed to cooperate for the child’s well-being.
- After three months, the visitation hours for appellants No.2 and 3 are restricted to 10.00 AM to 04.00 PM on Saturdays and Sundays at the father’s house.
- Upon the child reaching four years of age, appellants No.2 and 3 can take the child on Saturdays and Sundays from 11.00 AM to 05.00 PM and return custody before 05.00 PM.
- The father is responsible for ensuring the comfort of appellants No.2 and 3 during their visits.
- Further modifications to visitation rights can be sought through the High Court.
Case Title: TEJASWINI GAUD Vs. SHEKHAR JAGDISH PRASAD TEWARI
Case Number: Crl.A. No.-000838-000838 / 2019
