Minor youngster’s custody to father can’t be termed unlawful: HC

Chandigarh: In a significant judgment, the Punjab and Haryana high court has held that custody of a child, even if in the case of less than five years of age, to the father can’t be termed illegal and unlawful.

The high court bench of justice Sant Parkash dismissed a plea from a Jalandhar mother, who had approached the high court with a plea seeking custody of the child claiming that he was in the illegal custody of the father.

“The welfare of the child is decisive for the claim of custody. The court is expected to strike a just and proper balance between the requirements of welfare of the minor child and rights of parents over the minor child. The court should also take into consideration the preference of the minor child to stay with either parent or grandparent,” the bench observed, adding that the mother being a natural guardian of a minor child has a preferential right to claim custody of her son.

However, the utmost consideration before the court is the well-being of the minor and not the legal right of a particular party. “The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. The term ‘custody’ should not be interpreted in its strict sense as physical custody. Custody means custody in the sense of supervision and control over the child. The mother’s or father’s right to the custody of their minor child is no longer absolute,” the bench said.

The three-year-old child is living with his father. The plea was filed in 2020 claiming that the child was in the illegal custody. After a dispute, the couple started living separately and in July 2020, the woman complained to the police against estranged husband taking the forcible custody of the minor. It was also alleged that the respondent’s family is involved in drug cases. It was also alleged that while the estranged husband went to the United States, the minor was kept with her mother-in-law.

The Section 6(a) of the Hindu Minority and Guardianship Act, 1956, says the custody of a minor child, who has not completed the age of five years, shall ordinarily be with the mother. Ordinarily, the courts have been awarding custody to the mother when age is less than five of a child.

The husband had refuted allegations of illegal custody and said that while elder minor was with the woman, younger one was with him. The husband had also produced record about acquittal in drugs cases. The court found the plea from the woman is maintainable in law, but refused to grant custody to the mother.

“The duty of a court exercising its parens patraie jurisdiction (the power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child who is in need of protection), as in cases involving custody of minor children is all the more onerous. Sentiments and welfare of the minor are supreme consideration which cannot be ignored,” it said, adding that if the welfare of the child so demands, then technical objections cannot come in the way.

The courts should decide the issue of custody only on the basis of what is in the best interest of the child, it added, dismissing the plea.


    Surender Sharma is a principal correspondent at Chandigarh. He covers Punjab and Haryana high court.
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