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SUPREME COURT OF INDIA
B.R. GAVAI, K.V. VISWANATHAN, JJ.
Gautam Kumar Das – Appellant
Versus
NCT of Delhi and Others – Respondents
Criminal Appeal No. 3447 of 2024, Arising Out of SLP (Criminal) No. 5171 of 2024
Decided On : 20-08-2024
Constitution of India – Article 32 – Habeas Corpus petition seeking custody of minor daughter – Appellant’s wife died due to COVID infection and as such, he was forced to give custody of minor child to sisters of his deceased wife – Pursuant to visitation rights granted by High Court and this Court, minor child has gelled well with family and family of four appears to be happy – Appellant is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi – Apart from taking care of his children, appellant can very well provide best of education facilities to his children – Child, who lost her mother at tender age, cannot be deprived of company of her father and natural brother – At relevant time, appellant had no other option but to look upon sisters of his deceased wife to nurture his infant child – Merely because of unfortunate circumstances faced by appellant as a result of which respondents were given temporary custody of minor child and only because they looked after her for few years, same cannot be a ground to deny custody of minor child to appellant, who is her only natural guardian – Impugned judgment and order of High Court quashed and set aside – Respondents directed to handover custody of minor child forthwith. (Paras 11, 12, 13 and 17)
Facts of the case:
Present appeal challenges final judgment and order dated 3rd April 2024 passed by a Division Bench of High Court of Delhi in Writ Petition (Crl.) No. 416 of 2024, whereby High Court disposed of petition filed by appellant, seeking to obtain custody of his minor daughter from alleged unlawful custody of sisters-in-law of appellant, by granting liberty to the parties to approach family court of competent jurisdiction for seeking custody of child in question.
Findings of Court:
No hard and fast rule can be laid down insofar as maintainability of habeas corpus petition in matters of custody of minor child is concerned. As to whether the writ court should exercise its jurisdiction under Article 226 of Constitution of India or not will depend on facts and circumstances of each case.
Result : Appeal allowed.
JUDGMENT :
B.R. GAVAI, J.
1. Leave granted.
2. The present appeal challenges the final judgment and order dated 3rd April 2024 passed by a Division Bench of the High Court of Delhi in Writ Petition (Crl.) No. 416 of 2024, whereby the High Court disposed of the petition filed by the appellant, seeking to obtain the custody of his minor daughter from the alleged unlawful custody of respondent Nos. 5 and 6 (sisters-in-law of the appellant), by granting liberty to the parties to approach the family court of competent jurisdiction for seeking custody of the child in question.
3. The facts, in brief, giving rise to the present appeal are as given below:
3.2 When their daughter was only 10 days old, the appellant unfortunately lost his wife on 30th April 2021, due to Covid-19 infection. Shortly thereafter tragedy struck the appellant once again as he lost his father on 13th May 2021, due to Covid-19 infection.
3.3 Grieving the loss of his loved ones, the appellant, took help from respondent No. 5, who is his sister-in-law, in taking care of his children. The appellant handed over the custody of his children to his sister-in-law as an interim/stop-gap solution, to see through the difficult period that he was undergoing on account of loss of his wife and father.
3.4 After some time, the custody of the minor son was given back to the appellant, but the custody of the minor daughter was sought to be kept by respondent No. 5 on the ground that the girl child was still quite young and would require the care and attention of a female for few more months. The custody of the minor daughter, as a result, continued to be with respondent No. 5.
3.5 Respondent No. 5, thereafter, started refusing to let the appellant meet the minor daughter on one pretext or the other. She also took the minor daughter to her maternal home at Belda, West Bengal, where custody of the minor daughter was handed over to respondent No. 6.
3.6 The appellant, in the meanwhile, married again in order to provide his children with the care and attention of a female. He again approached respondent No. 5 to get back the custody of his minor daughter, but the same was refused again.
3.7 Aggrieved by the sequence of events, the appellant on 7th July 2023, filed a case under Section 10 of the Guardians and Wards Act, 1890, being Case No. GP/71/2023 seeking custody of his minor daughter. The appellant also filed two complaints, one in Delhi and the other one in Belda, West Bengal, but no action was taken on them.
3.8 The appellant, thereafter, on 30th January 2024, filed a Writ Petition before the High Court of Delhi being W.P. (Crl.) No. 416 of 2024 seeking custody of his minor daughter from respondents Nos. 5 and 6.
3.9 Pursuant to the order of the High Court dated 7th February 2024, the appellant withdrew his case under the Guardians and Wards Act. The Division Bench of the High Court, thereafter, interacted with the parties and referred the matter to mediation to find out a workable solution. Taking into consideration the report of the mediator, the Division Bench arrived at an interim arrangement for visitation rights. However, vide final judgment and order, the High Court disposed of the writ petition by granting liberty to the parties to approach the family court of competent jurisdiction.
3.10 Aggrieved thereby, the appellant approached this Court. Vide order dated 16th April 2024, this Court issued notice and directed that the minor daughter shall remain in Delhi. Vide order dated17th May 2024, this Court, on a prima facie consideration of the facts, was of the view that the appellant has valid grounds to claim the custody of his minor daughter. However, before arriving at a final conclusion, this Court thought it fit to give proper opportunity t
Custody of minor daughter – Father has paramount right to get custody of child who has lost her mother.
The welfare of the child is the paramount consideration in custody disputes, and habeas corpus is not the appropriate remedy for custody transfer when legal avenues exist.
The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
(1) Courts while considering question of a minor child’s custody, has to keep in mind overall well being of child and paramount consideration should be only its welfare.(2) It is discretion of Family....
Handing over of child’s custody to father at this stage might create some problems initially and that would be resolved with passage of time.
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