1. Father seeking custody of minor daughter from relatives — Petition for writ of habeas corpus — Dispute over natural guardianship and child welfare. (Para 2 )
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2024 Supreme(SC) 671
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
IMPORTANT POINT
Custody of minor daughter – Father has paramount right to get custody of child who has lost her mother.
Headnote:
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.
Legal Category Hierarchy
Table of Contents
2. Natural guardian's right to custody versus maintainability of habeas corpus petition and allegations of parental unfitness. (Para 5 , 6 , 7 , 8 )
3. Natural guardian's entitlement to custody — Welfare of the child as paramount consideration — Maintainability of habeas corpus in custody matters based on specific facts. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
4. Paramount welfare of the child governs custody — Natural guardian's right prevails unless unfitness is proven — Temporary interim custody does not extinguish legal guardianship. (Para 10 , 13 , 16 )
5. Appeal allowed — High Court order set aside — Custody granted to father — Visitation rights granted to respondents. (Para 17 )
6. Is a writ of habeas corpus maintainable for seeking custody of a minor child?
Yes, the maintainability of a habeas corpus petition under Article 226 of the Constitution of India depends on the facts and circumstances of each case; there is no hard and fast rule. (Para 9 , 15 )
7. Does granting temporary custody of a child to relatives extinguish the natural guardian's right to claim custody?
No, temporary custody provided as an interim or stop-gap solution during difficult circumstances does not constitute a ground to deny custody to the natural guardian. (Para 11 , 13 )
8. What is the primary consideration when determining the custody of a minor child?
The paramount welfare of the child is the guiding principle, encompassing factors such as ethical upbringing, economic well-being, health, education, and the love and affection of the natural family. (Para 10 , 16 )
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:
3.1 On 27th January 2012, the appellant married one Ms. Subrata Das and out of the wedlock two children were born - the first child, Master Divyanshu Das, on 11th September 2013, and the second child, Ms. Baby Sugandha Das, on 20th April 2021.
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
