Himachal Pradesh High Court: Mother natural guardian of kids after father
Himachal Pradesh High Court in a landmark Litigation pertaining to the custody of a kid has ruled that the mother is a natural guardian after the father.
Single bench of justice Vivek Singh Thakur, dismissing a petition filed against the order dated 23.11.2022, passed by Sub-Divisional Magistrate, Nalagarh, whereby SDM directed the grandparents to hand over custody of minor children to the mother.
The respondent Priti Devi was married to Amar Singh, of village Bahlam in Tehsil Ramshehar, District Solan. Due to quarrels taking place between husband and wife as well as with other members of the family, Priti Devi and her husband Amar Singh had been residing separately at Nalagarh along with their two minor sons.
On 17.07.2022, Amar Singh committed suicide and was declared dead in Hospital at Nalagarh where he was taken by his wife with the help of local police.
Darshan Singh, father of deceased Amar Singh lodged FIR against Priti Devi alleging that his son committed suicide due to cruelties to which he was subjected by his wife Priti Devi.
Resultantly, on 18.07.2022, Priti Devi was arrested and, she was released on bail on 27.07.2022. During the intervening period, children remained with their grandparents.
After releasing on bail, Priti Devi filed an application in the Court of SDM, Nalagarh, for custody of her children. The SDM, Nalagarh, directed the grandparents to hand over custody of the minor children to the mother Priti Devi.
The grandparents approached High Court against the order passed by the SDM, Nalagarh. The counsel for petitioners contended that respondent Priti Devi was not having good relations with her husband and she abetted him to commit suicide.
As such, the lives of the children would not be safe in the hands of the mother. It has been further canvassed that the mother is having no means to look after and bring up children whereas, the grandfather is an Ex-Serviceman and is having sufficient landed property therefore, it will be in the interest of the children to keep them with their grandparents.
On the other hand counsel for the respondent contended that had she been an abettor for the commission of suicide by her husband, then she would have never informed the police and would not have taken him to the Hospital with the help of the police.
After hearing counsel for the petitioner at length and going through the record of the case, the Court observed that the allegation that the mother abetted the father of the children to commit suicide, is yet to be proved.
Moreover, she has not been declared incompetent or disentitled to have custody of her minor children.
Therefore, after the death of the father, the mother is the next person to have guardianship/custody of minor children.
However, Court has made it clear that the right of the mother to have custody of children is not absolute but is subject to the welfare of the children and in the case of appropriate proceedings, she is found incompetent and/or disentitled to have custody of children or to ensure the welfare of the children, then she will lose the right to continue their custody and in such eventuality custody to the guardianship of children.
