Facts of the case

The appellant-father took help from his sister-in-law (Respondent 5) in taking care of his children. The appellant handed over the custody of his children to his sister-in-law as an interim/stop-gap solution, to see through the difficult period that he was undergoing on account of loss of his wife and father. After some time, the custody of the minor son was given back to the appellant-father, but the custody of the minor daughter was sought to be kept by sister-in-law on the ground that the girl child was still quite young and would require the care and attention of a female for few more months. Respondent no. 5, thereafter, started refusing to let the father meet his minor daughter on one pretext or the other. She also took the minor daughter to her maternal home at Belda, West Bengal, where custody of the minor daughter was handed over to respondent No. 6. The father, in the meanwhile, married again to provide his children with the care and attention of a female. He again approached respondent No. 5 to get back the custody of his minor daughter, but the same was refused again. Thus, Aggrieved, the father filed a case under Section 10 of the Guardians and Wards Act, 1890, seeking custody of his minor daughter.

Issues

Whether the writ Court should exercise its jurisdiction under Article 226 of the Constitution of India or not will depend on the facts and circumstances of each case?

Important referred Judgements:

1. Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Other, where the Court affirmed a Bombay High Court judgment that directed the relatives of a deceased mother to hand over the custody of the child to the father.

2. In Nirmala v. Kulwant Singh, 2024 SCC OnLine SC 758 it was observed that no hard and fast rule could be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of minor child was concerned. Whether the writ Court should exercise its jurisdiction under Article 226 or not will depend on the facts and circumstances of each case, however, a common thread in all such judgments on custody of minor children is the paramount welfare of the child.

Ratio

The natural guardian’s right to custody of a child is not lost merely because temporary custody was given to a relative.

Judgement

The court granted custody of a minor child to her father stating that merely because the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It added, “In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to the illness of the parents, the appellants had to take care of the child for some time.” The bench added, “In our opinion, merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian.” The top court concluded, “However, it is to be noted that a common thread in all the judgments concerning the custody of minor children is the paramount welfare of the child…we find that, apart from the appellant being the natural guardian, even in order to ensure the welfare of the minor child, she should live with her natural family.”