Where Parents Agree To Allow Child Custody To Either One Of Them, Court Can Intervene If Custody No Longer In Minor’s Welfare: Rajasthan High Court

The Rajasthan High Court has held that in cases where parties have agreed to allow the custody of the child with one of the parents, it should remain with that party alone, unless it is demonstrated that the same is no longer in the child’s welfare.

The court made the observation while allowing a father to continue with the temporary custody of the child. It took into consideration the minor’s unwillingness to stay with the father and the allegation that the child was beaten up by a hockey stick and that his mother and his friend “smoke”.

The bench of Justices Vinod Kumar Bharwani and Manindra Mohan Shrivastava said:

“In cases where parties have agreed to allow the custody of the child to remain with one of them, ordinarily, the custody of the child should be allowed to remain with that party alone unless, it could be demonstrated in appropriate proceedings that continuance of such custody is no longer in the welfare of the child.”

The bench said in such a situation, the agreement between the parties does not come in the way of the court in passing appropriate orders with regard to the custody adopting parens patriae approach keeping in view the settled principles that welfare of the child is paramount consideration.

The case arose from the strained relationship between the petitioner and his husband. As per the agreed terms and conditions including the agreement with regard to the custody of the child to remain with the mother, a decree of divorce by mutual consent was granted in favour of the woman and against the husband.

The petitioner contended that the child was unlawfully detained by the father, who failed to return him as promised after a temporary arrangement during her absence.

The mother subsequently filed a complaint with the police, alleging unlawful detention of the child, and regained custody of the child with the intervention of the authorities.

In response, the father said that the child was living happily with him and expressed concern about the mother's "involvement" in an alleged live-in relationship — the father alleged that the person she was involved with had a history of violence and drug abuse, posing a threat to the child's safety.

The father also denied the accusation of forcibly snatching the child away from the mother's lap. Instead, he said that the police took the child away at the mother's instigation.

The counsel for the petitioner contended that father should have followed the proper procedure and applied for custody. It was pointed out that the husband had already initiated proceedings before the Family Court, which were still pending at the time this petition was filed.

The court rejected the objections regarding the maintainability of the habeas corpus petition. It placed reliance on the Apex Court’s decisions in the cases of Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 wherein it was held that the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

The court observed that the mother had the custody of the minor son under the terms of an agreement relating to passing of decree of divorce by mutual consent.

While relying on the Apex court’s decision in Dr. Amit Kumar Versus Dr. Sonila and Others, (2019) 12 Supreme Court Cases 711, the court said that it was still open for the husband to seek appropriate order with regard to the custody of the child, if he is able to prove in properly constituted proceedings that the custody of the child with the petitioner-mother is against minor’s welfare.

However, at the same time, the court said that it was not open for the husband to take or retain the custody of the child on the allegation that continuance of the child with the mother was against his welfare.

“The only legal course open to the husband-respondent No.4 was to approach the Court seeking orders for custody notwithstanding the fact that he had agreed earlier in divorce petition that the custody of the child may remain with the petitioner-mother. It is still open for him to approach the Family Court seeking custody of the child by proving the allegations levelled by him against the petitioner-mother,” the court said.

The court said that it would have allowed the custody of the minor son with the mother, leaving the husband to workout his remedy, however, it was faced with a peculiar situation.

“When we had interacted with the child on 03.02.2023, the minor expressed willingness to stay with the father. That perhaps would not have deterred us to return the custody of the child with the petitioner-mother till husband respondent No.4 works out his remedy and obtains order of custody of the child through appropriate judicial process, but child before us also stated that he is not inclined to stay with the petitioner-mother in the house as one xxx resides, who drinks,” the court observed.

While acknowledging that the correctness of the statements by the minor was disputed and there was possibility of the child being tutored, the court, however, said that the father should be allowed to continue with the temporary custody of the child.

“This is for the reason that except right to retain the child under the agreement between the parties, there is no clinching material against the statement of the minor recorded by us in our order dated 03.02.2023 that we should allow the child to remain in the custody of the petitioner-mother till the case is decided in appropriate proceedings,” the court said.

The court directed the Family Court to decide the case within four months, while clarifying that if the husband fails to file the application by a specified date, the interim custody shall automatically end, and the custody will be handed over to the mother. Until the final disposition of the case, the father was allowed temporary custody, and the mother was granted visitation rights.

Case Title: SJ vs. The State Of Rajasthan and Ors

D.B. Habeas Corpus Petition No. 349/2022

Appearance:

For Petitioner(s) : Mr. Ajay Singh Advocate with Ms. Deepa Choudhary Advocate, Mr. Tribhuwan Rajput Advocate, Mr. Prawal Mishra Advocate, Mr. Jai Prakash Poshwal Advocate, Mr. Pradeep Malakar Advocate & Mr. Vijay Chaudhary Advocate.

For Respondent(s) : Mr. R.N. Mathur, Senior Advocate with Mr. Sudhir Jain Advocate. Mr. Suresh Kumar Sahni Advocate. Mr. Bajrang Lal Choudhary Advocate. Mr. Parth Sharma Advocate.