Medical Prescription For Abdominal Pain Insufficient To Prove Mother Is Alcoholic: Allahabad High Court Grants Custody Of Child

The Allahabad High Court has recently observed that prescription for abdominal pain does not prove that the mother of the minor corpus is an alcoholic, to deprive her of her rights over the child.

Observing that mother is the natural guardian of a child till the age of 5 years, the Court granted the mother the custody of the child.

Noting that the husband, who had forcefully taken the custody of the child, had alleged that the mother was an addict and alcoholic based on medical prescriptions, Justice Sandeep Jain held,

“Keeping in view, the abdominal pain, the doctor advised her to refrain from taking spicy food. No such definite opinion has been expressed in any prescriptions that the mental condition of the petitioner is unsound or she is alcoholic. On the basis of the above prescriptions, it cannot be said that the petitioner is not in a fit physical and mental condition to look after the welfare of the minor corpus.”

Petitioner-mother sought custody of the corpus-minor child who was allegedly forcefully taken away by the father. Earlier the Court had rejected the Habeas Corpus petition on grounds of alternate remedy under the Guardians and Wards Act. This decision was reversed by the division bench in special appeal wherein it was held that Habeas Corpus petition was maintainable for seeking custody of the child between the parents.

Accordingly, the Habeas Corpus petition was restored and was listed before Justice Jain. The Court observed that though earlier the child had been directed to be handed over to the mother by an order of the Child Welfare Committee but this order was set aside by the division bench and therefore, there was no order regarding the custody of the child on the date of hearing.

“It is well-established that, ordinarily, the custody of a minor who has not attained the age of five years is entrusted to the mother. This principle has been recognized and codified by the legislature through the above relevant statutory provision. The legislative intent underlying this enactment reflects a recognition of the unique nutritional, emotional, and developmental needs of the minor, which, in the formative years, can best be met by the mother. While the father plays an essential role in the child's upbringing, it is the mother who, by reason of biological and nurturing considerations, is ordinarily best positioned to secure the physical and emotional welfare of the minor.”

The Court observed that the mother was living with her parents and was dependent on their income as the husband-father was not giving her any maintenance. It was further observed that though the father had attributed addiction, alcoholism and mental instability to the mother, he had failed to prove the same.

It further observed that the mother had established with evidence that the father had remarried and was living with another woman. It also observed that the fact that the husband had forcefully snatched the corpus from the mother, despite order of the Child Welfare Committee awarding custody to the mother, was established by documents available on record.

Further, noting that the father was suspended from work by SSP Jaunpur, the Court observed, “This attitude and behavior demonstrate that he is not at all concerned with the orders of this Court, which is particularly distressing given that he is a member of the disciplined force as a police constable, who has shown open defiance of the Court's orders.”

Accordingly, the Court allowed the petition and granted the mother custody of the child with visitation rights to the father.

Case Title: RD And Another v. State Of U.P. And 7 Others

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