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Cases Where The Courts Allowed Father To Have Custody Of Child

By Ankit Tiwarii | Views 10179

Swaminathan Kunchu Acharya v. State of Gujarat, (2022) 8 SCC 804
Facts: A (Husband) and B (Wife) had a Child (C) aged 5 years. In the Covid-19 Second Wave, parents lost their life. C started residing with his maternal uncle (MU) aged 57 who was an ex-government servant and has his own house and bigger family. The paternal parents (PP) aged 73 were not allowed to C, so they filed a writ of habeas corpus for custody.

Decision: Held, independent income, younger age, and/or bigger family of a maternal aunt cannot be sole criteria to tilt the balance and deny custody to grandparents when the capacity and/or ability of grandparents to take care of their grandson, cannot be doubted-In the facts and circumstances of the case, custody of minor corpus directed to be continued with paternal grandparents.
Angelina Miranda Minor Child v. Lisbon John Miranda, 2012 SCC
Facts: A (husband) and B (Wife), had a minor child (c) who is 4 years old. One day A murdered B, due to which A got jailed. Maternal Parents and Paternal Parents applied for custody of the C.

Decision: Matter to be considered by the Court in appointment guardian:
1. In appointing or declaring the guardian of a minor, the Court shall, subject to the provision of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
2. In considering what will be the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
3. If the minor is old enough to form an intelligent preference, the Court may consider that preference.
Jurisdiction (The Guardians And Wards Act, 1890)
The court has jurisdiction to entertain the application:
1. If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
2. If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
3. If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
  (https://districts.ecourts.gov.in/hydifc )
Parth Minor v. State of U.P., 2021 SCC OnLine All 643
Facts: Husband (A) and Wife (B) married as per Hindu Marriage Act, later they had a baby child. Thereafter due to some dispute, they got separated. One fine day Husband forcefully abducted the Child. Efforts were made to get back the child but A did not let her do so. Consequently, B filed a Writ of Habeas Corpus.

Observations: In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardship Act or the Guardian and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area in which the court exercise such jurisdiction.

There are significant differences between the inquiry under the Guardians and Ward Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits.

Where the Court is of the view that a detailed inquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. it is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus.

Decision: Habeas Corpus Petition got dismissed.