In minor's custody case, where child is below 5 years of age, mother is preferred

In minor's custody case, where child is below 5 years of age, mother is preferred

Meenakshi Vs State of UP

Allahabad HC

02/12/2020

HABEAS CORPUS WRIT PETITION No. - 861 of 2019

About/from the judgment:

The parents together are a young child's world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.

But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple.

It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be.

The High Court observed that

What is important while deciding the issue of custody between two natural guardians, is where the minor's welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned.

The instant petition was filed for a writ of habeas corpus, instituted by Master Anav's mother, the first petitioner, asking the Court to liberate the minor from his father's custody by entrusting the minor into hers, is about a young child’s devastating world.

Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry.

Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home.

The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce.

Further, it was stated that Meenakshi after the above settlement went back to her mother’s home along with her young son, Anav. After some time petitioner 1 claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband with two making it common cause to oust her minor son from her mother’s home.

While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the respondent 6 to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property.

In light of the above motive, Meenakshi was beaten up and her son was snatched away, leading to locking up Meenakshi.

Later Anav was handed over to Meenkashi’s husband.

Analysis and Decision
Bench observed that the mother of the minor came up with serious allegations about her son being kidnapped by force by her brother and being delivered into her husband’s custody.

Court found no tangible evidence in regard to the child being forcibly removed from mother’s custody.

The minor is a young child of tender years. He is just four years old. The Court did not find him capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be.

Amongst many things that this Court noticed is the fact that the father is not, particularly, interested in raising the minor.

A perusal of the settlement between the parties contained clause wherein it was specifically stated that the minor, Anav, then aged two and a half years, would stay in his mother’s custody.

The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility.

Mother’s right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was held that

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

Court added to its observation in custody matters that,

But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.

Bench noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. Court found that the mother in the present case is more educated than the father.

Adding to the above, Court also stated that:

The mother, being found fit to have the minor’s custody, it cannot be the best arrangement to secure the child’s welfare, or so to speak, repair his devastated world. He must have his father’s company too, as much as can be, under the circumstances.

This Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. The father must, therefore, have sufficient visitation while the minor stays with his mother.

Hence, the habeas corpus writ petition was allowed in view of the above discussion.

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