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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Lajwanti and Others – Petitioners
Versus
Priti Devi and Others – Respondents
Cr. M.M.O No. 1164 of 2022
Decided On : 02-06-2023
Code of Criminal Procedure, 1973 - Section 482, 98, 97 - Guardianship and Wards Act, 1890 - Section 7, 19, 39 - Constitution of India, 1950 - Article 226 - Hindu Minority & Guardianship Act, 1956 - Section 6, 13 - Minor children - Natural guardian - Hand custody to their mother - Petition against order whereby Magistrate held that respondent No. 1 being natural guardian of her minor sons, is entitled for their custody and SHO Police Station, has been directed to produce minor children before Magistrate for handing over their custody to their mother - Custody of elder child is also deserves to be handed over to mother with whom younger child will go.
Findings of the Court:
Unless or until mother is incapacitated and declared incompetent or disentitled for custody of children, by competent Court in appropriate proceedings in accordance with law, in view of Section 6 of Guardianship Act, mother, after death of father, is entitled to have custody of her minor children - Court do not find any illegality, irregularity or perversity in order under challenge passed by Sub-Divisional Magistrate, directing grandparents to handover custody of children to their mother - Right of mother to have custody of children is not absolute, but subject to welfare of children and in case in appropriate proceedings she is found incompetent and/or disentitled to have custody of children or to ensure welfare of children, then she will lose right to continue their custody and in such eventuality custody/guardianship of children may be handed over to their grandparents or any other person competent and entitled to have custody of children.
Result: Petition dismissed.
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. The instant petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’) has been preferred by petitioners, against order dated 23.11.2022, passed by Sub-Divisional Magistrate, Nalagarh, District Solan, H.P. in Case No. 72-IV of 2022, titled as Priti Devi vs. Lajwanti & others, and order/warrant dated 24.11.2022, issued in the same matter, whereby Magistrate has held that respondent No. 1-Priti Devi, being natural guardian of her minor sons, is entitled for their custody and SHO Police Station Ramshahar, has been directed to produce minor children (petitioners No. 4 and 5 herein) before Magistrate on 12.12.2022 for handing over their custody to their mother Priti Devi.
2. I have heard learned counsel for the parties and have also gone through the record.
3. Facts, emerging from the record, are that respondent No. 1-Priti Devi was married with Amar Singh, who was son of petitioner No. 1-Lajwanti and petitioner No. 2-Darshan Singh. Whereas, petitioner No. 3-Sunita Devi was his sister. Petitioners No. 4 and 5 minors are children of Amar Singh and respondent No. 1-Priti Devi.
4. Due to quarrels taking place between husband and wife as well as with other members of family, Priti Devi and her husband Amar Singh had been residing separately at Nalagarh. Whereas, petitioner Nos.1 and 2 and other members of family were residing in Village Bahlam in Tehsil Ramshehar, District Solan, H.P. Petitioner No. 3-Sunita Devi has been married to Jai Pal, resident of Khokhra, Post Office Khera, Tehsil Nalagarh, District Solan, H.P.
5. Record reveals that there were quarrels not only between husband Amar Singh and wife Priti Devi, but also between Priti and Sunita Devi and other family members, i.e. Sunita as well as Darshan Singh and Lajwanti, and to avoid quarrels, as per compromise, Amar Singh and Priti Devi were residing at Nalagarh alongwith their two minor children. Elder son Divyance is 7 years old, whereas, date of birth of younger son Harshit is 14.06.2021.
6. On 17.07.2022, Amar Singh was taken to Hospital at Nalagarh by Priti Devi, by informing local police, in police Van, where during treatment he died at 10.30 p.m. At that time, her minor children were alone in rented room. According to respondent No. 1-Priti, when she was in Hospital attending to her husband, she called her parents to look after minor children, who rushed to Nalagarh and mother of respondent No. 1 stayed with children in the room. Whereas, father of respondent No. 1-Priti came to the Hospital. In the meanwhile, Sunita Devi came to the room of Amar Singh and took both children with her to Village Bahlam, and, Darshan Singh lodged FIR against respondent No. 1-Priti Devi alleging that Amar Singh committed suicide due to cruelties by his wife respondent No. 1-Priti Devi. Resultantly, on 18.07.2022, respondent No. 1-Priti Devi was arrested and, thereafter, she was enlarged on bail on 27.07.2022. During intervening period children remained with petitioner No. 2-Darshan Singh, who were handed over to Darshan Singh by petitioner No. 3-Sunita Devi, who was well acquainted with children because she was frequent visitor and she took children to the house of her father (petitioner No. 2-Darshan Singh) in Village Bahlam.
7. After release on bail, respondent No. 1-Priti Devi filed an application under Section 98 of Cr.P.C. in the Court of Sub Divisional Magistrate, Nalagarh, for production and custody of minor children, but her application was rejected by the Magistrate on 09.8.2022 being not maintainable. The said order was assailed by respondent No. 1-Priti Devi before Additional Sessions Judge, Nalagarh, District Solan, H.P. who vide order dated 01.10.2022, passed in Criminal Revision No. 8/NL/10 of 2022, titled as Priti Devi vs. State of H.P. and Others, set aside order dated 09.08.2022 directing the parties to appear before the Magistrate on 10.10.2022, with direction to the Magistrate to decide the matter afre
Section 7 of Wards Act, 1890 provides that Court, on satisfaction that it is for welfare of a minor, can pass order appointing a guardian of person or property of minor or both.
The welfare of the child is paramount in custody disputes, and a father's custody cannot be deemed wrongful confinement under Section 97 CrPC.
The welfare of the child is the paramount consideration in custody disputes, and custody with the father cannot be deemed wrongful confinement under Section 97 CrPC.
word of caution to the community leaders who rather than taking upon themselves this task in future, without any legal background, should approach the Taluka Legal Services Authority or the District ....
Jurisdiction for custody of a minor must be determined by the child's ordinary residence, as per Section 9 of the Guardians and Wards Act, 1890.
The welfare of the minor children is the paramount consideration in custody matters, and the natural guardianship of the father entitles him to claim custody of his children.
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.
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