Supreme Court grants custody to father in child custody battle: Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari (2019)

Date of the Judgment: May 06, 2019

Citation: (2019) INSC 430

Judges: R. Banumathi, J. and R. Subhash Reddy, J.

Can a father be denied custody of his child if relatives have been taking care of the child for some time? The Supreme Court of India recently addressed this question in a case where the father sought custody of his minor daughter through a writ of habeas corpus. The court had to decide whether the High Court was correct in ordering the child’s custody to be handed over to the father. This case highlights the importance of the child’s welfare as the paramount consideration in custody battles. The judgment was delivered by a two-judge bench of Justices R. Banumathi and R. Subhash Reddy, with Justice R. Banumathi authoring the opinion.

Case Background

The case revolves around the custody of a minor girl, Shikha, whose mother, Zelam, passed away due to cancer. Zelam married Respondent No. 1 on May 28, 2006. In May 2017, during her pregnancy, Zelam was diagnosed with breast cancer. Shikha was born on August 14, 2017. Until November 2017, Shikha was with her father, Respondent No. 1. On November 29, 2017, Respondent No. 1 was hospitalized with Tuberculosis Meningitis and Pulmonary Tuberculosis. During his treatment, Zelam and Shikha were taken by Zelam’s sisters, Tejaswini Gaud (Appellant No. 1) and her husband, Dr. Pradeep Gaud (Appellant No. 4), to their residence in Mumbai. In June 2018, Zelam and Shikha moved to the residence of Zelam’s brother, Samir Pardeshi (Appellant No. 3), in Pune. In July 2018, they shifted back to Appellant No. 1’s house in Mumbai. Zelam passed away on October 17, 2018. Shikha remained in the custody of the Appellants in Pune until November 17, 2018. Respondent No. 1 was denied custody of Shikha, leading him to file a police complaint on November 17, 2018, and subsequently, a writ petition in the High Court seeking custody of his daughter. Respondent No. 1 is a post-graduate in Management and works as a Principal Consultant with Wipro Limited.

Timeline:

Course of Proceedings

The High Court of Bombay ruled that the father, being the only surviving parent, is entitled to the custody of the child. The High Court acknowledged the care provided by the appellants but emphasized that the child needs the love, care, and affection of her father. The High Court granted access to the child to Appellants No. 2 and 3 to recognize their efforts in taking care of the child.

Legal Framework

The Supreme Court examined the relevant provisions of the Hindu Minority and Guardianship Act, 1956. Section 6 of the Hindu Minority and Guardianship Act, 1956, defines who can be considered a natural guardian. It states that the father is the natural guardian of a Hindu minor, both for the minor’s person and property, in the case of a boy or an unmarried girl, and after him, the mother. This guardianship continues unless the father ceases to be a Hindu or renounces the world. Section 13 of the Hindu Minority and Guardianship Act, 1956, emphasizes that the welfare of the minor is the paramount consideration in appointing or declaring a guardian. Section 13(2) of the Hindu Minority and Guardianship Act, 1956, specifies that no person is entitled to guardianship if the court believes it will not be in the minor’s welfare.

“Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts as to who can be said to be a natural guardian. As per Section 6 of the Act, natural guardian of a Hindu Minor in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property) is the father, in the case of a boy or an unmarried girl and after him, the mother.”

“Section 13 of the Act deals with the welfare of a minor. Section 13 stipulates that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.”

“Section 13(2) stipulates that no person shall be entitled to the guardianship by virtue of the provisions of the Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”

Arguments

Arguments by the Appellants:

• The appellants argued that a writ of habeas corpus is not appropriate when an alternative remedy is available under the Hindu Minority and Guardianship Act, 1956.
• They contended that the child was handed over to them by the ailing mother, who wished for them to care for her child. Therefore, it is not a case of illegal detention.
• They submitted that the primary consideration in child custody matters is the welfare of the child, not the legal rights of the parties. Since they have been caring for the child for over a year, they should have custody.
• They argued that Section 6 of the Hindu Minority and Guardianship Act, 1956, should not supersede the welfare of the minor.
• The appellants relied on several cases, including Dr. Veena Kapoor v. Varinder Kumar Kapoor [(1981) 3 SCC 92], Sarita Sharma v. Sushil Sharma [(2000) 3 SCC 14], and others, to support their claim that the child’s welfare should be the paramount consideration.

Arguments by the Respondent No. 1 (Father):

• The father argued that under Section 6 of the Hindu Minority and Guardianship Act, 1956, he has the paramount right to the custody of his child. He cannot be deprived of custody unless proven unfit.
• He contended that the child was with the appellants due to his and the mother’s illness. Now that he is healthy, the child should be with him.
• He submitted that as the natural guardian, the appellants have no legal right to the custody of his child, and their refusal to hand her over amounts to illegal detention.
• The father relied on cases such as Gohar Begam v. Suggi @ Nazma Begam and Others [AIR 1960 SC 93], Smt. Manju Malini Sheshachalam v. Vijay Thirugnanam & Others [2018 SCC Online Kar 621], and others, to assert his right to custody.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was right in ordering that the custody of the minor child be handed over to the father in a writ of habeas corpus.
2. Whether handing over the custody of the child to the father is not conducive to the interest and welfare of the minor child.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

Statutes:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed Gohar Begam v. Suggi @ Nazma Begam and Others [AIR 1960 SC 93], emphasizing that the writ of habeas corpus is appropriate for restoring custody to the legal guardian when wrongfully deprived.
• The Supreme Court distinguished Dr. Veena Kapoor v. Varinder Kumar Kapoor [(1981) 3 SCC 92] and Sarita Sharma v. Sushil Sharma [(2000) 3 SCC 14], noting that those cases involved disputes between natural guardians, unlike the present case.
• The Supreme Court referred to Rajiv Bhatia v. Govt. of NCT of Delhi and others [(1999) 8 SCC 525], highlighting that the High Court should not examine the legality of an adoption deed in habeas corpus proceedings.
• The Supreme Court followed Smt. Manju Malini Sheshachalam v. Vijay Thirugnanam & Others [2018 SCC Online Kar 621], supporting the view that refusing to hand over a child to the natural guardian constitutes illegal detention.
• The Supreme Court referred to Ruchi Majoo v. Sanjeev Majoo [(2011) 6 SCC 479], emphasizing the High Court’s jurisdiction to determine the validity of detention and issue custody orders.
• The Supreme Court referred to Nithya Anand Raghavan v. State (NCT of Delhi) [(2017) 8 SCC 454], noting that the High Court may direct or decline the return of a child, considering the child’s welfare.
• The Supreme Court referred to Lahari Sakhamuri v. Sobhan Kodali [2019 (5) SCALE 97], to distinguish between cases of children removed from foreign countries and those within India.
• The Supreme Court referred to Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 413], emphasizing that the welfare of the child is paramount in child custody cases.
• The Supreme Court referred to Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42], emphasizing that “welfare” includes moral and ethical well-being.
• The Supreme Court referred to Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840], highlighting that a guardian’s fitness depends on their suitability and the child’s interests.
• The Supreme Court distinguished G. Eva Mary Elezabath v. Jayaraj and Others [2005 SCC Online Mad 472], noting that the father in that case had abandoned the child.
• The Supreme Court distinguished Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi [(1992) 3 SCC 573], noting that the children in that case had expressed their desire not to go with their father.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

The Court emphasized the legal right of the father as the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956. The Court also noted the welfare of the child as the paramount consideration, as stated in Section 13 of the Hindu Minority and Guardianship Act, 1956. The Court considered the circumstances in which the child came into the custody of the appellants, noting that it was due to the illness of both parents. The Court recognized the father’s stable economic condition and his ability to provide care for the child. The Court also took into account the child’s need for the love and affection of both parents, which would be best fulfilled by granting custody to the father. The Court also considered that the child was only 1 ½ years old and could not express her preferences. The Court also considered the fact that the father was now healthy and had the support of his mother to take care of the child.

Sentiment Analysis Ranking of Reasons Given by the Supreme Court:

Fact:Law Ratio Analysis:

Logical Reasoning:

The Court considered alternative interpretations but rejected them, emphasizing the father’s legal right and the child’s welfare. The Court also considered the fact that the child was very young and could not express her preferences. The Court concluded that the father was the most suitable person to take care of the child. The decision was reached after a thorough consideration of the facts, legal provisions, and precedents.

The court’s reasoning was based on the following points:

• The father is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956.
• The welfare of the child is the paramount consideration under Section 13 of the Hindu Minority and Guardianship Act, 1956.
• The appellants had no legal right to the custody of the child.
• The father is now healthy and capable of taking care of the child.
• The child needs the love and affection of her father, which can only be provided if custody is granted to him.

“In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent-father is a natural guardian of the minor child and is having the legal right to claim the custody of the child.”

“In determining the question as to who should be given custody of a minor child, the paramount consideration is the `welfare of the child’ and not rights of the parents under a statute for the time being in force.”

“The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason.”

Key Takeaways

• The father, as the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, has a legal right to the custody of his child.
• The welfare of the child is the paramount consideration in child custody cases, as emphasized by Section 13 of the Hindu Minority and Guardianship Act, 1956.
• A writ of habeas corpus is maintainable in child custody cases where the detention of the child is illegal.
• Relatives who have been taking care of a child do not have a legal right to custody over the natural guardian.
• The court will consider the child’s need for love and affection from both parents when deciding custody matters.

The judgment reinforces the importance of the father’s role as the natural guardian and the child’s need for parental love and care. It also clarifies that while the welfare of the child is paramount, the legal rights of the natural guardian cannot be ignored. This decision may impact future custody cases where relatives are seeking custody against a natural guardian.

Directions

The Supreme Court upheld the High Court’s decision to grant custody to the father. The Court directed that the appellants shall hand over the custody of the child to the father on May 10, 2019, at 10:00 AM at the father’s residence. The Court also granted visitation rights to Appellants No. 2 and 3, initially for three months for the entire day, then on weekends, and later on Saturdays and Sundays, as the child grows older. The Court also stated that the parties are at liberty to approach the High Court for any further modification of the visitation rights, if needed.