Welfare of a child supersedes legal rights in custody matters.

Asmita Kuvalekar | Government Law College, Mumbai | 17^th March 2020. 

TEJASWINI GAUD AND OS V. SHEKHAR JAGDISH PRASAD TEWARI AND OS CRIMINAL APPEAL NO 838 OF 2019 ARISING OUT OF SLP (CRL.) NO 1675 OF 2019

FACTS OF THE CASE: 

By its order dated 06.02.2019, the Bombay High Court granted custody to the first respondent- father of the child and issued a writ of Habeas Corpus against the appellants, directing them to hand over custody of the child to the father. The High Court based its order upon the fact of natural guardianship of the father over the minor child. This appeal challenged the High Court’s order asserting that a writ of Habeas Corpus, being an extraordinary remedy, cannot be issued when an alternative remedy exists under another law, being the Hindu Minority and Guardianship Act, 1956 in this case. Furthermore, the writ in question can be issued solely to counter illegal detention and the appellants argued that the child was in their custody on the wishes of her late mother. Thus, their custody does not count as illegal detention and for these reasons, the High Court’s order should be nullified. However, the Supreme Court in this case goes beyond the factual issues to analyse the efficacy of laws and legal remedies with respect to custody matters. 

ISSUE: 

1. Whether the High Court was right in issuing the writ of Habeas Corpus?  
2. Whether welfare of the child is to be considered over and above legal rights of parties in custody matters? 

JUDGEMENT: 

The Supreme Court first and foremost dove into the essence of the right of Habeas Corpus and the High Court’s power under Article 226 to issue the same. It held that the writ can be issued against illegal detention including cases where a child is wrongfully kept away from legal custody of his/her natural guardian. For restoration of legal custody in such cases, the writ court has ample jurisdiction. Moreover, any person not having custody rights by law commits an offence of illegal detention under Section 491 CrPc. Upholding the judgement in Gohar Begum v. Suggi @ Nazma Begam and Others¹, the Court reiterated that simply because a personal law affords a remedy in the situation, the remedy under Section 491 cannot be denied to the aggrieved party and a writ may be issued.  It was further clarified that a Habeas Corpus proceeding is an extraordinary remedy to be provided in situations where the usual remedy under law has become unavailable or is ineffective. Custody of children falls under this category when it can be proved that the person having custody is legally not entitled to do so. Therefore, a writ of Habeas Corpus is maintainable in this case and in all future comparable situations. 

The Supreme Court then analysed the present case in terms of the power of Habeas Corpus and how it is to be exercised.  In all writ petition matters over a child’s custody, the Court’s foremost concern must be the welfare of the child involved. In the present case, it was held that not only was the father, the natural guardian of the child, entitled to file a Habeas Corpus petition, he was also entitled to the custody of the child as the appellants could not prove a legal right for the same. The natural guardian must be given preference unless the extenuating circumstances are such that the Court cannot plausibly award custody to him. Here, the father of the child was well educated, employed at a respectable post and had never shown neglect towards the child. In fact, it was not the case of the appellants that the respondent-father was negligent or unfit in any manner to take care of his own child after her mother’s death. The Court noted that although, the minor being 11/2 years of age is unable to prefer one over the other, her welfare depends largely on not missing out on her father’s love and care after her mother’s untimely passing. To deprive her completely of her father and vice versa for no apparent reason is therefore not conducive to her welfare. The Court awarded visitation rights to the appellants to ease the child’s transition but the custody was awarded to the father as all decisions of the court must be dynamic, in consideration of the facts and circumstances surrounding the case. Thus, the High Court’s decision was duly upheld. 

Going beyond the facts however, the Supreme Court recognized the nature of legal rights vis a vis a child’s welfare by highlighting the case in Nil Ratan Kundu v. Abhijit Kundu². Itself relying on various past judgements in Goverdhan Lal v. Gajendra Kumar³, M.K. Hari Govindan v. A.R. Rajaram⁴, Kamla Devi v. State of H.P.⁵, the judgement had categorically stated that legal rights, oral and written submissions, mere documents cannot supersede the welfare of a child. If a person is legally entitled to custody but in the opinion of the court is unfit to nurture the child, it becomes the Court’s responsibility to come to a decision that is beneficial to the child. Blind application of legal rights can lead to great damage to the children of the society. 

Thus, the final word of the Supreme Court on custody issues was declared to be such: all legal considerations of the parties must be thoroughly investigated and respected as far as possible but the final decision cannot be devoid of the “human touch”. Such sensitive decisions cannot and should not be made by courts in a void and the child’s welfare should be the central and paramount concern. As observed by the court in Rosy Jacob v Jacob A. Chakramakkal⁶, “The children are not mere chattel: nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society…” 

Therefore, this case is significant in terms of the Supreme Court’s extensive explanation of how important legal rights are when considered in conjunction with a child’s welfare. 

1. AIR 1960 SC 93
2. (2008) 9 SCC 413
3. AIR 2002 Raj 148
4. AIR 2003 Mad 315
5. AIR 1987 HP 34
6. (1973) 1 SCC 840