Case Note & Summary
The Supreme Court dismissed an appeal against the Bombay High Court's judgment ordering the custody of a minor girl child to her father, respondent No.1, in a habeas corpus petition. The marriage of respondent No.1 with Zelam was solemnized on 28-05-2006. During her pregnancy in May 2017, Zelam was diagnosed with breast cancer. A girl child, Shikha, was born on 14-08-2017. While Zelam was undergoing treatment, the child was with respondent No.1 until November 2017. On 29-11-2017, respondent No.1 was hospitalized with Tuberculosis Meningitis and Pulmonary Tuberculosis. During his treatment, appellant No.1 (Tejaswini Gaud), sister of Zelam, and appellant No.4 (Dr. Pradeep Gaud) took Zelam and Shikha to their residence in Mahim, Mumbai. Later, in June 2018, Zelam and Shikha were shifted to Pune to the residence of appellant No.3 (Samir Pardeshi), Zelam's brother. In July 2018, they were again shifted to appellant No.1's residence in Mumbai. On 17-10-2018, Zelam succumbed to her illness. The child continued to be with the appellants. Respondent No.1 was denied custody and filed a complaint on 17-11-2018, then approached the High Court by writ of habeas corpus. The High Court ordered custody to the father, granting access to appellants No.2 and 3. The appellants appealed to the Supreme Court, contending that habeas corpus was not maintainable as there was no illegal detention, and that the welfare of the child required her to remain with them. The Supreme Court held that the writ of habeas corpus is maintainable for custody of a minor child when the child is in illegal detention by a person not entitled to legal custody. The court noted that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian and has a preferential right to custody. The court found that the father, being the surviving parent and a well-educated professional, was not shown to be unfit. The temporary illness and the mother's death did not deprive him of his right. The court emphasized that the welfare of the child is paramount, but in this case, the child's welfare is best served by being with the father. The court dismissed the appeal, upholding the High Court's order.
Headnote
A) Family Law - Custody of Minor - Habeas Corpus - Maintainability - Writ of habeas corpus is maintainable for custody of minor child when the child is in illegal detention by a person not entitled to legal custody - The court must consider the welfare of the child as paramount, but the natural guardian's right is not absolute - In this case, the father being the natural guardian and surviving parent, the High Court rightly ordered custody to him (Paras 11-13). B) Family Law - Custody of Minor - Welfare of Child - Paramount Consideration - Under Section 13 of the Hindu Minority and Guardianship Act, 1956, the welfare of the minor is the paramount consideration in matters of custody - However, the father as natural guardian under Section 6 has a preferential right, and unless shown to be unfit, he is entitled to custody - The court held that the father's illness and temporary inability to care for the child do not make him unfit, and the child's welfare is best served by being with the father (Paras 10, 14-15).
Issue of Consideration
Whether the High Court was right in ordering custody of minor child to father in a habeas corpus petition, and whether such custody is conducive to the welfare of the child.
Final Decision
The Supreme Court dismissed the appeal, upholding the High Court's judgment ordering custody of the minor child to respondent No.1-father. The court held that the writ of habeas corpus was maintainable, and the father, as natural guardian, is entitled to custody unless shown to be unfit. The court found no evidence that the father was unfit, and the welfare of the child is best served by being with the surviving parent.
Law Points
- Writ of habeas corpus is maintainable for custody of minor child
- Welfare of minor is paramount consideration
- Natural guardian has preferential right but not absolute
- Father's right to custody subject to welfare of child
