The Allahabad High Court last week comprising of a bench of Justice J. J. Munir refused to hand over the custody of a two-year-old daughter to the petitioner-woman who has been accused of murdering her husband (i.e., child's father). (Gyanmati Kushwaha and another v. State Of U.P. And 4 Others)
The Bench, however, gave the mother the liberty to seek daughter's custody in the event she is acquitted by judgment based on doubt or otherwise.
Facts of the case
The petition, filed by the woman/mother of the minor residing in Mumbai had alleged that on 11th May, 2018, deceased went to his native place at Jhansi while petitioner stayed back in Mumbai along with her daughter. On 13th May, 2018, Petitioner got a phone call from her husband’s (deceased) maternal uncle alleging some unidentified person had murdered her husband. However, when she reached Jhansi with her daughter, she was falsely involved in her husband’s murder case and was arrested while her daughter was taken away by her husband’s maternal uncle. Since then the child was in his custody.
Contention of the parties
It was submitted on behalf of Gyanmati Kushwaha that she is Drisha's mother, and the only surviving natural guardian, after her husband Krishna Kushwaha's death. She is entitled to Drisha's custody.
It was submitted by Ms. Jaiswal on behalf of Gyanmati Kushwaha that the provisions of Section 6(a) of The Hindu Minority and Guardianship Act, 1956 are of particular relevance. She emphasized that under the proviso to Section 6(a), the mother has the right to the custody of a minor child until the age of five years ordinarily, which is quite apart of her right to the minor's natural guardianship. It was said that pitted against the minor's father, in cases where the minor is below five years of age, the mother would have a preference in the matter of custody over the father also. Here, Suresh Kushwaha is Drisha's grandfather. It was absolutely not in the minor's welfare to entrust her custody to the grandfather, while the mother is around. There is no one better than the mother to look after the custody of a child, particularly, a young child.
On the other hand Mr. Vishal Agarwal, Mr. Om Prakash and Mr. Jhamman Ram, argued in one voice to say that the general rule postulated under the proviso to Section 6(a) of the Act of 1956, and elsewhere too, about the mother's right to a young child's custody would not be applicable here.
They submitted that in this case, the mother would not be entitled to Drisha's custody, because she is an accused in the case relating to her husband's murder, along with co-accused Ajay, who has been dubbed as her paramour, and other associates. She has been assigned the role of conspiracy in the crime, and charge-sheeted. She is facing trial for her husband's murder, and if convicted, the child's life might be ruined. An apprehension has also been expressed that the child's life may be in jeopardy, if the allegations about her involvement in conspiracy with Ajay to murder her husband were true.
Mr. Agarwal has also raised an issue about territorial jurisdiction. He submits that the fact that the child is residing in Mumbai with the sixth respondent, there is no territorial jurisdiction with this Court to entertain this petition for a writ of habeas corpus.
Court's Observation and judgment
The Court at the very outset observed that the law would not certainly countenance custody of a minor to be handed over to a parent who is an undertrial, in connection with the other's murder, and that too, on a charge of conspiracy with a paramour.
On the other hand, the Court noted,
" It is the mother's right to her child's care and custody, and the child's right, in turn, to her mother's love and affection, which the law takes care of to the extent that if the mother were in jail in an unrelated matter, young children up to the age of five or six years, depending on different jail rules in the various states, are allowed to stay in prison with the incarcerated mother."
Significantly, the Court observed that the statutes may speak about the right of one parent or the other to custody, or the right of guardianship, but, in substance, it is not at all about the right of a guardian to the minor's custody, or guardianship; it is all about the minor's welfare.
Coming to the facts of the Case, the Court opined that if the mother were to be convicted, the minor's welfare would be thrown into disarray.
The Court remarked, "It would be irreversibly unsettling and debilitating in her formative years. It may even expose her to insurmountable trauma, if she witnesses her mother, whom she is bonded with, convicted in the case of her father's murder".
The Court further noted that the possibility that the mother might truly be a conspirator in her husband's murder, predicates a personality that would not be beneficial for the minor in grooming her about her moral values - a very important aspect of a child's welfare.
On the other hand, the Court remarked,
" If the mother is innocent and she is acquitted, the loss, the minor would suffer on account of deprivation of her mother's care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor's surer welfare, in preference to a contingent better, fraught with risk."
The court dismissing the plea said, "It is made clear that in the event the mother is acquitted by judgment based on doubt or otherwise, she would have the right to move
a court of competent jurisdiction for her daughter’s custody, which would then be decided in accordance with law. Subject to what has been said above, this Court does not find any good ground to make the rule absolute. It is, accordingly, discharged. In the result, this petition fails and stands dismissed."
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