Rajasthan High Court - Jaipur
Smt. Chandra Kanta vs Superintendent Of Police And Ors. on 10 May, 2000
Equivalent citations: 2000CRILJ3138, 2000(3)WLC667
ORDER
1. The case set up in this habeas corpus petition under Article 226 of the Constitution of India is that Pawan aged about 7 years being the son of the petitioner was with her up to 20-6-1999, on which day Banshi Lal (respondent No. 3), grandfather of Pawan, took him away from the Upadhyaya Public School, Agarsen Nagar, Mahesh Nagar, Jaipur, and is keeping him in detention. It is stated that the husband of the petitioner, Daulat Soni, having died on 13-6-1999, the petitioner is entitled to the custody of Pawan.
2. In the reply, Banshi Lal has come out with the case that the boy was reading in Bal Gyan Mandir, Jodhpur and he is a regular student of the school, and that he is living with him from the beginning. It is denied that the respondent had taken away Pawan from any school of Jaipur. It is stated that the petitioner is unemployed lady having no source of income and, therefore, she is not in a position to maintain her minor child. It is averred that the petition involves disputed questions of facts which can be determined only after recording the evidence of the parties and the petitioner has got alternate remedy under the Guardians and Wards Act.
3. The respondents Nos. 1 and 2, who are State functionaries, in their return, state that there is a dispute between the mother and the grandfather of the child regarding the custody and the dispute can be decided only by the Family Court.
4. In the rejoinder filed by the petitioner, it is stated that the petitioner is doing job with her brother and mother who are indulged in polishing stone and she has got sufficient income to maintain her son.
5. We have heard the arguments of the learned counsel for the parties. We have also talked to the child to know his wishes.
6. The contention of Smt. Chandrawati is that the petitioner-mother, being the natural guardian, is entitled to the custody of Pawan and that the custody of the grandfather cannot be said to be legal custody and it amounts to illegal detention of Pawan by him. Relying on the case of Smt. Usha Devi v. Kailash Narain Dixit AIR 1978 Madh Pra 24, she submits that the detention of Pawan by respondent No. 3 be declared illegal and the child be given in the custody of the petitioner.
7. Per contra, it is argued by Shri Bajwa that the paramount consideration in ordering the custody of the child should be his welfare and since the petitioner does not have enough means to maintain the child and also the child is not willing to leave respondent No. 3, the child should be; allowed to be retained by respondent No. 3. He contends that if Pawan is given in the custody of the petitioner against his wishes, it may cause mental trauma to him. He canvassed that this Court should not ignore the wishes of the child. He cites the cases of Rajiv Bhatia v. Government of NCT of Delhi AIR 1999 SC 3284 : 1999 Cri LJ 4292, Kirti kumar Maheshankar Joshi v. Pradipkumar Karuna-shanker Joshi AIR 1992 SC 1447 and Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor AIR 1982 SC 792 : 1982 Cri LJ 580.
8. There cannot be any dispute in this legal position that only father and mother are the natural guardians of a child and they are entitled to the custody of their minor child by virtue of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956. Section 6 of the Act is clear, which provides that in the case of a minor boy, the father and after him, the mother is the guardian and normally the father is entitled to the custody of the minor but the custody of a minor who has not completed the age of 5 years, shall ordinarily be with the mother.
9. In the instant case, the father of the child is not alive, therefore, the petitioner is the only person who is the natural guardian of Pawan and is entitled to his custody. The age of the boy which is more than five years does not debar the petitioner to hold the custody of Pawan. Grandfather is not the natural guardian under the scheme of the Act and, therefore, even if Pawan is more than 5 years of age, in the absence of his father, the petitioner-mother is entitled to his custody. The custody of the grandfather can, in no circumstances, be said to be the legal custody of Pawan.
10. In the case of Smt. Usha Devi AIR 1978 Madh Pra 24 (supra), a Division Bench of the Madhya Pradesh High Court has clearly observed that since the other relations having no legal right to the custody of a minor, their refusal to return the boy to the petitioners (parents) results in an illegal detention of the boy. We fully concur with the view taken by the Madhya Pradesh High Court in that case. Obviously, the respondent No. 3 does not have legal right to the custody of Pawan. His detention by respondent No. 3, therefore, is illegal.
11. In the Chambers we wanted to know the wishes of Pawan, but he did not give any reply and started weeping. He was not even prepared to see towards the petitioner. All the times, he was attracted towards respondent No. 3. The question for consideration is whether for that reason, the custody of Pawan by respondent No. 3 may be held to be legal.
12. It may be pointed out that till June, 1999 when Daulat Soni, father of the child, died, the petitioner used to live with respondent No. 3 as it was a joint family. In that situation, it was natural for Pawan to be nearer to his grand parents. It is not uncommon in the joint families that the children remain more close to their grand parents not because they do not like their parents but because the parents remain busy; father remaining out to earn livelihood and the mother remaining busy throughout the day in cleaning the house, washing the clothes, preparing the food for the family members etc. Now, the child is living exclusively with his grandfather for the last about 1 year and he has become emotionally attached to him. It is in these circumstances that he does not want to talk to his mother.
13. It cannot be accepted that it is not in the welfare of Pawan to give him in the custody of his mother. The boy, besides being emotionally attached to respondent No. 3, is under his influence and, therefore, he is not prepared to leave him. In our opinion, on that ground it cannot be said that it will not be in the interest of Pawan to give him in the custody to the petitioner. It is significant to point out that it is not alleged by respondent No. 3 that the petitioner is leading immoral life or that she is not physical or mentally fit to look after her child. Therefore, there cannot be any justification to deny her the custody of Pawan.
14. As to the financial position of the petitioner, her case is that she is doing job with her brother and mother and earns sufficient income. Even on assuming that the petitioner is not having sufficient means to bring up the child, it cannot be said that it will | be against the interest of the minor to give him in her custody. There cannot be any relation better than the mother to see the well being of her child. If the respondent No. 3 is worried so much about the welfare of the child, who prevents him from rendering fi nancial assistance to the petitioner for the study and bringing up of Pawan.
15. The case of Rajiv Bhatia 1999 Cri LJ 4292 (SC) (supra) relied on by Shri Bajwa, in our opinion, does not help respondent No. 3. In that case, the dispute was with regard to the custody of a young child between the adoptive parents and the natural mother. The Court held that the mother was entitled to the custody of the child. The only thing pointed out by Shri Bajwa in the judgment is that the views of the child should be given due weight. This Court is not deciding the rights of the parties while giving the custody of the child to the petitioner. What is being held by this Court is that the custody of Pawan to any person, other than the petitioner-mother amounts to illegal custody. As such, the wishes of the minor cannot be the guiding factor. The position might be different if both the parties were entitled to the legal custody of the child.
16. In the case of Kirtikumar Maheshanker Joshi AIR 1992 SC 1447 (supra) which was under the Guardians and Wards Act, the dispute of custody was between father and the maternal uncle of the child. The peculiar facts of the case were that two children - one of 13 years and other of 11 years were living with their maternal uncle. The mother of the children had died due to poisoning and the father was facing trial under Section 498A, I.P.C. It was noticed by their Lordships that the father had ill-treated the mother of the children and they were beaten by the father. The Court further noticed that they were living very happily with their maternal uncle who was looking after them well. Since the children were intelligent enough to understand their well being and they had expressed their desire to live with their maternal uncle, the matter was decided against the father. Thus, that was a case under the Guardians and Wards Act and the father was denied the custody of the children in the special circumstances of the case. Such fact-situation does not exist in the instant case.
17. The case of Dr. Mrs. Veena Kapoor 1982 Cri LJ 580 (SC) (supra) was between mother and the father of the child. The child (1 1/2 years), was in the custody of father after estrangement. Keeping in view that both the parents were natural guardian and minor's welfare was the paramount consideration, their Lordships directed an enquiry to be held by the District Judge on the question as to whether the custody of the child should be given to the mother. As already stated, in the instant case, the dispute is not between the two natural guardians and it is also not averred that the mother is leading immoral life or that she is not physically or mentally fit to look after the well being of Pawan, there is no cause to get the matter enquired into by the District Judge.
18. It is obvious that none of the cases relied upon by Shri Bajwa helps respondent No. 3 for keeping the custody of Pawan. We are of the considered opinion that in preference to the mother-petitioner, who is natural guardian, the grandfather does not have a legal right to the custody of the minor. As a matter of fact, the detention of Pawan by him is illegal. The welfare of Pawan lies in his living with the petitioner-mother who is best suited person to take care of him and rear him in the tradition of the family.
19. Consequently, the petition succeeds. It is found that the petitioner is in illegal custody of respondent No. 3. It is directed that Pawan shall be given in the custody of the petitioner, who being the mother, is the best person to take care of his health, education and all round development.