The welfare of the minor child is paramount in custody disputes, with the natural guardian's rights being upheld while ensuring the child's stability during transition.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appellant, father of a minor child, assailed the order of the Writ Court in a Habeas Corpus Writ Petition which denied the custody of the child who was with his grand-parents; his mother having passed away.

3. The learned Single Judge who disposed of the Writ Petition interacted with the child who submitted that he is comfortably residing and pursuing his education at his maternal grandfather’s house. It was also noticed that the father had re-married. On the basis of the above findings, it was opined that the welfare of the minor child; which is of paramount consideration, would be served by letting him continue with his grandfather; while the father was granted visitation rights to meet the child regularly on the first day of every month at the venue fixed by the jurisdictional Station House Officer.

4. Mr. Gopal Jha, learned counsel appearing for the appellant-father would rely on the decision of this Court in Gautam Kumar Das vs. NCT of Delhi and Another, (2024) 10 SCC 588 which emphasizes the need of the minor child to be with the natural guardian; especially when the mother is no more. It is pointed out that the circumstances coming out in the above case are identical insofar as, after the death of the mother, the father being denied the company of the child. Obviously the child did not have any familiarity with the father, the death of the mother having occurred in the year 2021. It is also submitted that the paternal grandfather of the minor child has conveyed a property in the name of the minor child to ensure his welfare and also deposited an amount of Rupees Ten Lakhs in the child’s name. The father who is an Administrative Service Officer of the State, though re-married, is confident that the second wife would look after the child as a mother and draw support from the affidavit of his second wife who undertakes to take care of the child as her own and endorses fully her husband’s need and desire to have the child with them for the betterment of his future.

5. Mr. Rajeev Kumar Dubey, learned counsel appearing for the respondents relies on Nirmala vs. Kulwant Singh and Others, 2024 INSC 370 in which this Court had emphasized the requirement of a detailed enquiry regarding the welfare of the minor child and his preference; which exercise could be carried out only in the proceedings under the Guardian and Wards Act, 1890.¹ [For brevity “the Act”] It is pointed out that the appellant-father has already filed a Guardian O.P. and in that circumstance, the prayer for production of the child by a writ of Habeas Corpus was not at all maintainable. The fact that the father has re-married, soon after the death of the first wife was rightly considered by the High Court, in refusing the custody of the child to the father. It is argued that the appellant should be relegated to the remedy he has voluntarily invoked under the Act.

6. We have gone through the two decisions placed before us and Nirmala, according to us, relies on the peculiar facts of that case in which the mother was found missing and later found dead in a canal. An accusation was made against the father; during investigation of which case the father himself has appointed the grandmother as the guardian of the minor child and caretaker of a property which was gifted by a maternal aunt to the minor child. The case against the father was closed and he approached the Child Welfare Committee² [for brevity “the CWC”] on the ground that the appellant-grandmother had employed fraud in taking away the child. The CWC granted custody of the minor child to the father, which was interfered with by the High Court finding lack of jurisdiction on the CWC, which led to a Habeas Corpus petition being filed by the father. The High Court found the welfare of the child to be best served in the hands of the father and granted visitation rights to the grand-parents, while keeping open the remedy available to agitate the cause of custody.