Father is the natural guardian of the child in the absence of the mother

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1698 OF 2013

Amol Ramesh Pawar ..Petitioner.
R/o: Chandanagar, Janai Manai,Society, Kodoli, Satara.
versus
1. The State of Maharashtra
2. The Deputy Superintendent of Police, Baramati, District Pune.
3. Senior Inspector of Police, Baramati Taluka Police Station, Baramati
4. The Superintendent of Police, Satara, District – Satara
5. Senior Inspector of Police, Satara City Police Station, Satara
6. Ramesh Prakash Dhotre
R/o : Ambarai, Baramati District Pune. ..Respondents.

Mr. Vaibhav Gaikwad for the Petitioner.
Mr. H.J. Dedhia, Addl. P.P. for the State.
Ms. Manjiri Parasnis for Respondent No.6.

CORAM : P.V. HARDAS AND
A.S. GADKARI, JJ.
27 February 2014.
ORAL JUDGMENT (Per P.V. HARDAS, J.) :

Rule. Rule, made returnable forthwith. With the consent of learned counsel for the parties, this Petition is heard finally at the stage of admission.

2. By this Petition under Article 226 of the Constitution of India the Petitioner, the anguished father of the minor child aged two and half years seeks the custody of the child who is presently in the custody of Respondent No.6. It appears that the Petitioner was married to the daughter of Respondent No.6 on 23 November 2010. From the wedlock, the wife of the Petitioner gave birth to Tejas on 20 November 2011. The wife of the Petitioner died on 21 March 2012 due to burns. A complaint was accordingly lodged against the Petitioner, and Petitioner and others were prosecuted for the said offence. The Additional Sessions Judge at Satara acquitted the Petitioner and others for the offence punishable under Section 498 A, 302(2) read with Section 34 of the Indian Penal Code. According to learned counsel for Respondent No.6 against the judgment of the Additional Sessions Judge dated 26 April 2013 in Sessions Case No.120 of 2012 an appeal against acquittal has been filed in this Court.

3. According to the Petitioner after he was acquitted the Petitioner made attempts at securing the custody of his minor son Tejas, but Respondent No.6 did not respond and the Petitioner left with no other alternative, has filed the present petition. The Petitioner therefore prays for custody of his minor son Tejas who is presently been looked after by Respondent No.6 be handed over to him.

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4. Counsel appearing for Respondent No.6 has urged before us that the conduct of the Petitioner disentitles the Petitioner from claiming any discretionary relief from this Court. According to counsel for the Petitioner the Petitioner did not bother to seek the custody of the minor child even when he was released on bail and even thereafter when he was acquitted by the Trial Court. Counsel appearing for Respondent No.6 has further urged before us that the Petitioner had remarried and his second wife has also left the Petitioner. There is no other person in the family who can look after the minor child. It is lastly urged before us by counsel for Respondent No.6 that the minor child is being well looked after by Respondent No.6 and the welfare of the child which is the paramount consideration at the time of handing over of the custody would require that the custody of Tejas be retained by Respondent No.6.

5. Counsel for Respondent No.6 has referred to the judgment of the Supreme Court in Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi.

This was a case arising from the Guardians and Wards Act and the Supreme Court found that the father of the child was facing charge under Section 498-A of the Indian Penal Code and the children had expressed before the Supreme Court their willingness to remain with their maternal uncle who according to the children was looking after them very well and the children had also expressed that they do not wish to live with their father. In that background therefore the Supreme Court came to the conclusion that though the father being a natural guardian, has a preferential right to the custody, but after talking to the children and assessing their state of mind, the Supreme Court held that in the circumstances it would be in the interest and welfare of the children to hand over their custody to their maternal uncle instead of to their father.

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6. Counsel for Respondent No.6 has further referred to the judgment of the Learned Single Judge of the Allahabad High Court. The Learned Single Judge of the Allahabad High Court found that the two and half months child was living with the in-laws of the Petitioner on account of death of their mother. The Learned Single Judge took into consideration the welfare of the child and found that since the child was being properly looked after in the maternal home and the family having sufficient means as well as means to provide proper educational facilities, the father of the child was held not entitled to his custody. The Learned Single Judge of the Allahabad High Court, however, held in favour of the Petitioner that resort to the remedies available under the Hindu Minority and Guardianship Act was no bar for entertaining a petition for habeas corpus.

7. Counsel for Respondent No.6 has further referred to the judgment of the Division Bench of the Madras High Court in G. Eva Mary Elezabath v.Jayaraj.

This was regarding the custody of a minor child aged one month who had been abandoned by father in Church premises immediately on death of his wife. The custody of the child was accordingly handed over to the Petitioner who took care of the child for two and half years. The father of the child though a natural guardian therefore was declined the custody.

8. In the light of the present facts, the ratio of the aforesaid judgments, in our opinion, would not be applicable to the present case.

9. The Petitioner being the father of the child is the natural guardian. The Petitioner was prosecuted for an offence punishable under Section 498-A and 302 of the Indian Penal Code. The Petitioner has been acquitted of the said offence by the judgment of the Additional Sessions Judge, Satara in Sessions Case No.120 of 2012 by judgment dated 26 April 2013. Since the judgment is of the year 2013 and practically 22 months have passed, no appeal against acquittal was filed by the State. Counsel for the Respondent now informs us that an appeal against acquittal has been filed in the Court by Respondent No.6. However, since the Petitioner has been acquitted and the Petitioner is the natural guardian of the minor child, the Petitioner cannot be deprived from obtaining the custody of his minor child. If the Respondents feel that the Petitioner is disentitled to continue the custody of the minor, the Respondents may avail the remedies available in law. The question as to whether the welfare of the minor would warrant the handing over the custody of the minor to any other person is a question which can only be decided after the evidence of the parties is recorded and certainly not in this Petition. The Respondent, however, would be at liberty to file appropriate proceedings under the Hindu Minority and Guardianship Act for claiming custody of the minor child. The said proceedings if they are filed by Respondent No.6 would be decided in accordance with law. Presently the Petitioner being the father cannot be deprived the custody of his minor child.

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10. We accordingly allow this Writ Petition and make rule absolute by issuing the writ of Habeas Corpus directing Respondent No.6 to hand over the custody of the minor child Tejas to the Petitioner. In the event the custody of the minor child is not handed over to the Petitioner, we direct the Respondent State to provide the necessary aid to the Petitioner for taking the custody of the minor child. We accordingly direct the officer incharge of the Baramati Police Station to provide the necessary aid to the Petitioner for taking the custody of the minor child from Respondent No.6.

11. Rule is thus made absolute on the above terms with no order as to costs.

At this stage, counsel for Respondent No.6 requests that this judgment be stayed for a period of six weeks to enable Respondent No.6 to obtain necessary orders to file appropriate proceedings for challenging this order. The request is declined.

(P. V. Hardas, J.)
(A.S. Gadkari, J.)

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