Chandigarh: In a unique case between the mother and the grandmother over the custody of a nine-year-old girl, the Punjab and Haryana High Court put its weight behind the grandmother ruling that if the custody of either parent does not promote the child's welfare, a third person who is eligible and taking good care of the child can be entitled to retain custody.
In the legal battle between the woman and her mother, Justice Manjari Nehru Kaul stated that the mother cannot merely seek custody of her daughter based on her legal right, and the paramount consideration in matters concerning custody of a minor child should be the child's welfare. The court made the observations while hearing a habeas corpus petition filed by the mother seeking the appointment of a warrant officer to search, locate, and recover her minor daughter from her maternal grandmother's alleged illegal confinement.
The mother claimed that her minor daughter has been illegally confined by her maternal grandmother on the pretext of providing her with good schooling and better care. The woman argued that as the child's natural guardian, she had a preferential right to her custody. She accused her mother of "poisoning and brainwashing" the child against her and argued that the child's life and liberty were under grave threat.
In response, the maternal grandmother, a retired government employee, claimed that the petitioner had given custody of the minor daughter to her due to her financial incapacity to pay for tuition fees and other expenses after her second marriage. The grandmother further submitted that the minor had confided in her that her stepfather had sexually abused her on multiple occasions and threatened her with dire consequences if she revealed or complained to anyone.
The grandmother claimed that when the minor told her mother, the latter admonished her instead of taking any action against her husband. She informed the court that she had approached the police and the State Human Rights Commission to take action against the minor's stepfather, resulting in an FIR being registered against him under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012.
To arrive at a just adjudication, Justice Kaul called the minor child to the chamber and interacted with her. The child categorically stated that she did not wish to meet or stay with her mother. The court observed that the child appeared mature and intelligent but was traumatized due to the alleged sexual abuse by her stepfather.
The child was distressed and disturbed while talking about the continuous sexual abuse by her stepfather. When the bench asked her why she did not want to meet or stay with her mother, she stated that when she brought the alleged instances of sexual abuse to her mother's notice, the latter admonished her and asked her to keep quiet about it. The court noted that the child seemed very happy and comfortable staying with her maternal grandmother.
"The expression ‘welfare of the child’ has to be given the widest interpretation so as to ensure the overall well-being and development of the child. The custody of the child can be granted only after a satisfaction has been arrived at by the Court that the same would be in the welfare and in the interest of the minor child," the bench said.
The court said the maternal grandmother is seemingly taking good care of the alleged detenue. It also took note of the submission that an FIR not only stands registered against the petitioner’s husband but he has also been arrested. "In the present case, the petitioner, even after being apprised of the alleged sexual abuse by her husband, failed to come to the rescue of her minor daughter, i.e. the alleged detenue," said the court.
Not deeming it fit to give the custody of the alleged detenue to the petitioner, the court said that doing so would not be conducive to the physical, psychological, and emotional well-being of the child, "especially when the alleged detenue has expressed her total disinclination to even meet the petitioner much less accompany her."
"Further, it may also be pertinent to point out here that the custody of the child was handed over to respondent No.4 (the grandmother) by the petitioner herself out of her own free will so that the child could attend a good school and be brought up well," the court said, while dismissing the petition.
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