The principal consideration to be decided in the writ of Habeas Corpus for custody of minor is whether the custody is illegal or not: Allahabad High Court

The custody of a minor child who has lived with her maternal grandparents since a very tender age is not unlawful or illegal. Such an observation was held by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Yogendra Kumar Srivastava in the case of Reshu @Nitya and ors vs State of UP and ors [HABEAS CORPUS WRIT PETITION No.­ 9 of 2020].

The fact of the case was that the mother of the minor died due to cardiac arrest when she was 19 months old and since then she is residing with her maternal grandparents. The contentions of the petitioners were that upon repeated requests the maternal grandparents were not handing over the custody of the minor to her father and paternal grandparents and therefore the respondents are illegally detaining the minor in their custody. However, the contention of the respondents was that the petitioners are responsible for the death of the minor’s mother for which a criminal complaint and an FIR has been lodged under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961 which is sub-judice. 

The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a   material bearing would be the necessity of the child being provided loving and understanding care,   guidance, and a   warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality

The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character,   personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.

Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.

Click here to read judgment

Judgment Reviewed by: Rohan Kumar Thakur

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