'Parties' Rights Can't Override Child's Welfare' : Supreme Court Sets Aside HC Order Giving Father Toddler's Custody From Maternal Relatives

Observing that the welfare of a child is of paramount importance, the Supreme Court on Friday (Sep.6) set aside the Madhya Pradesh High Court's order which had granted the custody of a 2.5-year-old child to her father on the sole ground of he being a 'natural guardian' of the child."As far as the decision regarding custody of the minor children is concerned, the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking Habeas Corpus concerning a minor," the Court observed.The Court summarised the principles regarding habeas corpus as follows :Writ of Habeas corpus is a prerogative writ. It is an extraordinary remedy. It is a discretionary remedy; The High Court always has the discretion not to exercise the writ jurisdiction depending upon the facts of the case. It all depends on the facts of individual cases;Even if the High Court, in a petition of Habeas Corpus, finds that custody of the child by the respondents was illegal, in a given case, the High Court can decline to exercise jurisdiction under Article 226 of the Constitution of India if the High Court is of the view that at the stage at which the Habeas Corpus was sought, it will not be in the welfare and interests of the minor to disturb his/her custody; As far as the decision regarding custody of the minor children is concerned, the only paramount consideration is the welfare of the minor. The parties' rights cannot be allowed to override the child's welfare. This principle also applies to a petition seeking Habeas Corpus concerning a minorWhen the Court deals with the issue of Habeas Corpus regarding a minor, the Court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. The Court has to act based on humanitarian considerations. After all, the Court cannot ignore the doctrine of parens patriae.It was a case where the High Court while deciding a Habeas Corpus petition preferred by the child's father had granted the custody of the child to the father from her maternal aunts and maternal grandparents ("Appellants") without considering the impact of the disturbance of the custody on the child. Sr. Adv. Gagan Gupta along with Nikhil Jain, AoR appearing for the Appellants argued that the High Court has disturbed the child's custody on the sole ground of recognizing the father's right as a natural guardian. Since the order of the High Court was stayed by the Supreme Court on previous occasions, therefore the custody of the child remained with the Appellants.Disapproving the High Court's approach, the bench comprising Justice Abhay S Oka and Justice Augustine George Masih said that it would be impermissible for the High Court while deciding a habeas corpus petition under Article 226 of the Constitution to disturb the custody of the child who was living wither maternal family for more than one and a half years after the death of her mother. “We believe that considering the peculiar facts of the case and the child's tender age, this is not a case where custody of the child can be disturbed in a petition under Article 226 of the Constitution of India. Only in substantive proceedings under the Guardians and Wards Act can the appropriate Court decide the issue of the child custody and guardianship.”, the Court said.Following the unfortunate death of the mother in December 2022, the baby was being brought up by the maternal relatives.Since the child hadn't seen her father for over a year, the Supreme Court showed reluctance in transferring the custody of the child to them.Even though transferring the custody of a child to her father wouldn't be in the interest of the child's welfare, the Court however held that the father and grandparents would be entitled to have access to meet the child for four months subject to any change in circumstances as decided by the regular court while adjudicating upon the application of the Appellants over seeking the custody of the child under the GW Act. The Court clarified that “even in the petition filed by the appellants, the competent Court can permit the father to take over the custody if it is satisfied that the welfare of the minor requires custody to be granted to the father.” “We propose to direct the appellants to give access to the father and paternal grandparents of the child to meet the child once a fortnight. To begin with, access can be provided in the office of the secretary of the District Legal Service Authority so that the secretary can supervise the access. We propose to direct the secretary of the District Legal Service Authority to take assistance from a child psychologist or a psychiatrist (preferably female) attached to a local public hospital. If no such expert is available with the local public hospital, such an expert can be appointed at the...

'Parties' Rights Can't Override Child's Welfare' : Supreme Court Sets Aside HC Order Giving Father Toddler's Custody From Maternal Relatives

Yash Mittal

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