Proviso To S.6 Guardians & Wards Act Does Not Render Father's Custody Of Minor Below 5 Yrs "Illegal": Patna High Court

The Patna High Court has held that custody of a child aged below five years with the father cannot be said to be "illegal". Justice Ashwani Kumar Singh remarked,"Proviso to clause (a) of Section 6 of the Guardians and Wards Act of 1956 though carves out an exception but it does not render the custody of a minor child aged below five years with his/her father illegal."Section 6(a) says that it is the father who is the natural guardian of a boy or an unmarried girl and according to this Section 6 clause (a), after the father, the mother is the natural guardian but there is an exception by way of proviso to this clause which says that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.The Bench added that Section 13 of the Act of 1956 would be the guiding factor in such situation. It is the welfare of the minor which will be of paramount consideration and court would be required to apply the legal test i.e. the 'best interest of the child test'.The petitioner and respondent were married following Hindu rites and customs in Tamil Nadu and have a female and a male child. The daughter is in the custody of the respondent-father, and the son is with the petitioner-mother.In a marital discord between the petitioner and the respondent, a case is registered under offences alleged under Section 298A, 279, 337, and 338 of the Indian Penal Code. It is the case of the petitioner that the respondent has no control over his rage and had assaulted her violently on two occasions, as a result whereof she was compelled to shift to the government quarter in Muzaffarpur along with her two kids. It is further alleged that the respondent visited the circuit house and took the girl child with him promising to return after a couple of days. However, since then, he has not returned the minor girl, who was only 29 months of age. He has also refused to leave the daughter with the petitioner even for two days.The petitioner further alleges that she has been meeting her expenses with the help of her mother. She has filed a maintenance petition for herself and the two babies. The petitioner's mother has also lodged a domestic violence complaint against the respondent. She also submits that being a DM, the respondent has little time for family members and much less for babysitting and makes the little daughter roam around his bungalow like an orphan. The Court noted that in view of Clause 6(A) of the Hindu Minority and Guardianship Act, 1956, since the child has not completed five years of age, her custody is mandatorily required to be handed over to the petitioner-mother.Granting custody to the mother, it referred to Nil Ratan Kundu and Another v. Abhijit Kundu, where it was held that the question of custody of the child is neither bound by statutes nor by the strict rules of evidence or procedure nor by precedent. The Court has to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development, and favorable surroundings.It was also argued during the course of hearing that a habeas corpus petition is not maintainable in child custody matters. However, the Court opined,"In a writ petition for changing the custody of a child from one spouse to another, the only issue for consideration is the consideration regarding the welfare of the child. If it is in the welfare of the child to entertain such an application, no technical objections can come in the way and the Courts have ample power to entertain such writ applications for changing the custody of minor from one spouse to another."Case Title: Smt. GGSS Sitara v. The State of Bihar & Ors.Citation: 2022 LiveLaw (Pat) 8Click Here To Download The Order Read The Order

Proviso To S.6 Guardians & Wards Act Does Not Render Father's Custody Of Minor Below 5 Yrs "Illegal": Patna High Court

Shrutika Pandey

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