The paramount consideration in the matter of custody of a child is the welfare of the child, and the character of the proposed guardian and the pendency of criminal cases are relevant factors to be considered.

JUDGMENT

Harnaresh Singh Gill, J. (Oral). - The petitioner, by way of this petition for habeas corpus, seeks custody of his daughter Nisha aged 3 years, alleging that respondent Nos. 5 to 7 had illegally taken away her and as such, the minor child is in the illegal custody of the said respondents.2. Learned counsel for the petitioner would submit that his daughter aged 3 years is in illegal custody of respondent Nos. 5 to 7; that respondent Nos. 5 and 6 are the maternal grandparents of the child whereas respondent No. 7 is the maternal uncle; that as per law, the petitioner being father and natural guardian of the child, is entitled to the custody of the child, but he has been deprived of the same, when the said respondents had taken away the child with them. Thus, laying emphasis on the fact that the petitioner being available to look after and take care of his daughter, the custody of the child be restored to the petitioner.

3. As would appear from the facts on record, marriage of the petitioner was solemnized with Preeti Sharma (deceased) on 23.11.2017. However, said Preeti Sharma, committed suicide on 03.12.2021 by hanging. FIR No.1144 dated 17.12.2021 under Sections 498-A and 304-B IPC was registered at Police Station Dhamapur, District Jabalpur, against the petitioner. As per the allegations contained in the FIR, Preeti Sharma had committed suicide on account of the torture and harassment caused by the petitioner for bringing less dowry and that the death of Preeti Sharma, was found to have occurred not under the normal circumstances.

4. It is, thus, apparent that the petitioner is an accused in the aforesaid FIR. His wife committed suicide barely within four years of their marriage. The police has, prima-facie, found the death to have occurred not under the normal circumstances, which is why the aforesaid FIR has been registered under Sections 498-A and 304-B IPC against the petitioner.

5. Learned counsel for the petitioner, when confronted with the aforesaid factual position, states that the petitioner must be considered to be innocent until proven guilty and thus, on that ground he cannot be denied the custody of his child, which he is otherwise legally entitled to. However, the said plea suffers from fallacy.

6. The issue of custody of the child is a very sensitive and has to be dealt with after taking into consideration the paramount welfare of the child. The petitioner, who is accused of having driven his wife to commit suicide, cannot be granted any equitable relief, when it comes to handing over him the custody of the minor child. Rather, culpability of the crime, he is accused of, would not only emotionally devastate and destruct the growing years of the minor, but would completely compromise her over all mental growth.

7. Even otherwise, the child is in the custody of the maternal grandparents and maternal uncle and thus, the said people cannot be termed to be foreigners to the custody of the child. In the given facts and circumstances, they are the best people to take care of the child.

8. The issue is not res-integra. Hon'ble Apex Court in Nil Ratan Kundu and another v. Abhijit Kundu, (2008) 9 SCC 413, held that the paramount consideration in the matter of custody of the child, would be the welfare of the child, and the court, exercising 'parens patriae' jurisdiction, must give due weightage to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor's mother, was a relevant factor required to be considered before an appropriate order could be passed. The relevant extracts from the judgment would read as under:-

"52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a