New Delhi: The Supreme Court has said that a father being a natural guardian cannot be denied the custody of the minor child while allowing a man's plea seeking custody of his minor daughter from his sisters-in-law. The custody of the child was entrusted to the sisters-in-law after the child’s mother died within 10 days of giving birth due to COVID-19 infection.
A bench comprising Justices B R Gavai and K V Vishwanathan said: "In our opinion, merely because of the unfortunate circumstances faced by the appellant (father) as a result of which, respondent Nos. 5 and 6 (sisters-in-law) 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 directed the two women to hand over the custody of the child forthwith to the appellant Gautam Kumar Das. “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", said Justice Gavai, who authored the judgment on behalf of the bench
Justice Gavai, in a judgment delivered on Tuesday, said the minor child is of tender age, and she will get adapted to her natural family very well in a short period while allowing the appeal filed by the man. However, the bench granted visitation rights to the sisters-in-law to meet the child.
Referring to the case of 'Nirmala Vs Kulwant Singh & Others' (2024), the apex court said: "In the case of Nirmala (supra) in paragraph 16 has also observed that no hard and fast rule can be laid down insofar as the maintainability of the habeas corpus petition in the matters of custody of the minor child is concerned".
The bench said that it has been held that as to 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. The bench said insofar as the allegations made against the appellant by sisters-in-law are concerned, it appears that they have been made only as an afterthought, and especially after the appellant started asserting his claim for the custody of his minor daughter. The bench observed that it can only say that there cannot be any straight-jacket formula in the matters of custody.
Regarding the fitness of the father to take care of the child, the bench said: "He is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi. The appellant's residence is also in Delhi whereas respondent No. 6 to whom the custody of the minor child was handed over to by respondent No. 5 is residing at a remote village in West Bengal. Apart from taking care of his children, the appellant can very well provide the best of the education facilities to his children”.
Justice Gavai said the child, who lost her mother at a tender age, cannot be deprived of the company of her father and natural brother. “At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child," he said.
The man handed over the custody of his children, a son and a daughter, to his sisters-in-law after their mother died within 10 days of the birth of the female child during the COVID-19 pandemic. The man was grieving, as he lost his father within a few days thereafter. The sisters-in-law handed over the male child but denied the custody of the daughter on the grounds of her tender age.
He remarried for better care of his children. However, the sisters-in-law denied him custody of his daughter. The man moved the Delhi High Court with a habeas corpus petition. The high court only granted him visitation rights.
The apex court observed that at the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child.
"A perusal of the photographs placed on record would also reveal that pursuant to the visitation rights granted by the High Court and this Court, the minor child has gelled well with the family and the family of four appears to be happy”, said Justice Gavai.
