Bombay High Court: Allowing the writ of Habeas Corpus, a bench comprising of P.V. Hardas and A. S. Gadkari, JJ ruled that since a father is the natural guardian of the child in the absence of the mother, hence custody of the child should be handed over from the maternal grandparents of the child to the petitioner. In the present case, the petitioner was accused of killing his wife but was acquitted of all charges by the trial court. He had filed a writ petition in the High Court to take custody of his two and half year old son after all efforts to procure his son from his grandparents failed. The Counsel for the respondent referred to the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi [(1992) 3 SCC 573] filed under the relevant provisions of the Guardians and Wards Act, 1890 where the father of the children was facing charge under Section 498-A of the IPC and the children had expressed their willingness to remain with their maternal uncle and also expressed that they do not wish to live with their father. In this background the Supreme Court held that though the father being a natural guardian had a preferential right to the custody, but after talking to the children and assessing their state of mind it would be in their interest and welfare to hand over their custody to their maternal uncle instead of their father. The High Court, however, held that the ratio of the above judgment would not be appreciable in the present case as the petitioner has been acquitted of all charges and ordered the respondent-grandfather to hand over the custody of the child. The Court observed that the question as to whether the welfare of the minor would warrant the handing over the custody of the minor to any other person is a question which can only be decided after the evidence of the parties is recorded and certainly not in this petition of Habeas Corpus. The Court ruled that the respondents are at liberty to file a case under the Hindu Minority and Guardianship Act, 1956 for claiming custody of the minor child but presently the petitioner being the father cannot be deprived the custody of his minor child. [Amol Ramesh Pawar vs. State of Maharashtra, Criminal Writ Petition No. 1698 of 2013, decided on February 27, 2014]
Posted on: Wed, 12 Mar 2014 11:55:26 +0000
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