The relevance of the character of the proposed guardian and the pendency of a criminal case in determining custody, prioritizing the welfare of the child.

JUDGMENT :

(Karunesh Singh Pawar, J.)

1. The petition seeks issuance of a writ in the nature of Habeas Corpus commanding the opposite parties to produce the corpus of detenu in Court and give him in the custody of the deponent/father Amritanshu Mishra.

2. Heard learned counsel for the petitioner and learned Additional Government Advocate as also learned counsel for respondents 4 to 6.

3. Learned counsel for the petitioner submits that the marriage of father of the detenu was solemnised on 22.4.2015 with the deceased Rani Shukla. The petitioner was blessed with one boy, i.e. detenu on 1.2.2017 out of wedlock. The mother of the detenu was in extra marital affair with one Sonu Ranjan, due to which frequent quarrel occurred between the duo. The mother of the detenu committed suicide on 9.8.2020 under impulse and anger as the father of the detenu asked her to stop having relationship with Sonu Ranjan.

After death of mother of the detenu, first information report was registered against his father, bearing case crime No.331 of 2020 under sections 498A, 304-B I.P.C. and 3/4 Dowry Prohibition Act. The father of the detenu was enlarged on bail by this Court vide order dated 4.3.2022. It is alleged that after death of mother of the detenu, respondents 4 to 6 have taken undue advantage and taken over unlawful custody of the detenu The father of the detenu went to respondents 4 to 6 for custody of his son detenu but they refused to give his custody to the deponent.

It is submitted on behalf of the petitioner that as per Section 6 of Hindu Minority and Guardianship Act, 1956, father is the natural guardian of child and is entitled to have the custody of the detenu. Relying on the judgment in Nil Ratan Kundu and another versus Abhijit Kundu (2008)9 SCC 413 (particularly paras 57, 58, 63, 65, 66, 67), it is submitted that the character of the proposed guardian is required to be considered to determine suitability of the father to have custody of the minor child.

It is submitted that there is no case law to the effect that the proposed guardian be denied custody of the child only on the ground of pending criminal trial against him. Welfare of the child has to be the top consideration while deciding the custody of the child.

It is also submitted that even from perusal of the statement of prosecution witnesses, it is clear that the deceased committed suicide.

4. Per contra, learned A.G.A. and learned counsel for the complainant have opposed the prayer.

It has been submitted on behalf of respondents 4 to 6 that on 9th August, 2020, mother of the detenu was murdered by the deponent who is father of the detenu, relating to demand of dowry. He is accused in first information report No.331 of 2020 under sections 498A, 304-B I.P.C. and 3/4 Dowry Prohibition Act, P.S. Raunahi, district Faizabad. Charge sheet has been submitted and the accused is facing criminal trial.

It is submitted that since his birth, the child is living safely with his maternal parents without any pressure and is pursuing his studies. It is further submitted that the deponent who is an accused of murder of mother of the detenu cannot be given custody of the child as such custody would not only emotionally devastate and destruct proper growth of the detenuboth physical and mental, but also his overall welfare will be compromised.

Learned counsel for respondents 4 to 6 has also relied on Nil Ratan Kundu's case. It is submitted that pendency of the criminal case where father is charged of causing murder of minor's mother is relevant factor and is required to be considered before an appropriate order could be passed.

5. It is not disputed between the parties that mother of the detenu died on 9.8.2020. It is also not disputed that a first information report No.331 of 2020 under sections 498A, 304-B I.P.C. and 3/4 Dowry Prohibition Act is registered and after filing of charge sheet, the accused deponent is facing criminal trial. It is further not disputed that since birth, the detenu is