Allahabad High Court Dismisses Habeas Corpus Petition by Mother Accused of Husband's Murder; Children to Remain with Paternal Relatives

A Single-Judge bench of Justice J.J. Munir heard a habeas corpus petition concerning custody of two young boys who were being kept by their late father’s relatives after their mother’s incarceration. The petition challenged the refusal of the respondents — members of the paternal family — to hand over custody of the minors to their mother, who faced trial on charges arising from her husband’s death.

The court held that, while the mother was a natural guardian and the welfare of the child was “of paramount consideration,” custody could not be mechanically restored where circumstances raised serious welfare concerns. The petition was dismissed and the rule nisi was discharged. The Court noted that ordinarily the custody of young children was best secured in the mother’s hands but that the word “ordinarily” recognised occasions where the mother might be disentitled to custody. The Court, in its reasoning, observed: "Now, Section 6(a) indeed makes the mother a natural guardian, along with the father. After the decision in Githa Hariharan (Ms) and another v. Reserve Bank of India and Another, the father and the mother, as natural guardians, stand at par, with no preference to the father. By virtue of the proviso to Section 6(a) of the Act of 1956, custody of children up to the age of five years is envisaged ordinarily to be with the mother. It is not that the age of five is a mathematically precise calibration, after which the child’s welfare may be judged free from the principle carried in the proviso to Section 6(a). The principle that animates the proviso last mentioned is that the welfare of a young child is best secured in the mother’s hands. In the opinion of this Court, that preference about welfare would not abruptly come to an end at the age of five, as if it were a statutory cut-off. The principle there would continue to apply, so long as the minor is of tender years. At the same time, what cannot be lost sight of is the fact that the provisions of Section 6(a) regard the mother’s pre-eminence to hold custody of a young child, ordinarily. The word “ordinarily” has much significance. It takes into account the circumstances that could be emergent in a case where the mother might be disqualified to hold a child’s custody. There could be cases where the minor’s welfare may not be best secured in the mother’s hand. Of course, those disentitling circumstances would have to be clearly pleaded and undisputedly proved. These could be, the mother being physically or mentally incapacitated, or demonstrably living in circumstances where the children’s welfare - physical, mental and psychological, would not be secure, or accused of a crime involving moral turpitude, that would impact the minor’s welfare. These situations are only illustrative and there could be many more."

Background The dispute arose after the deceased father, Pramod Kumar, was murdered and his wife Sonia was arrested on 05.09.2019 as a co-accused. During Sonia’s incarceration the two boys, Aryan (about five) and Chetan (about seven), were taken into the custody of respondent nos. 4 to 11, members of the paternal family. Sonia secured bail on 13.02.2020 and filed the habeas corpus petition seeking production and custody of her sons. Respondents opposed the petition, asserting that the children were staying with them by choice and contending that Sonia’s continued access would risk tampering with evidence and jeopardise the minors’ welfare, given the pending charge-sheet and trial in Sessions Trial No. 14 of 2020.

The High Court issued a rule nisi and directed the production of the children. On production, the court interacted with the elder child, Chetan, who expressed a preference to remain with his aunt and uncle and disclosed that his views appeared to have been influenced by them. The court examined the legal position under Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 17 of the Guardians and Wards Act, 1890, and considered precedents including Githa Hariharan, Nil Ratan Kundu, Shaurya Gautam and Angelina Miranda, which addressed the relevance of criminal charges against a parent in custody disputes. The court emphasised that "the welfare of the minor is of paramount consideration" and that allegations against a natural guardian were a relevant factor when deciding custody pending final determination of criminal guilt.

Weighing the children’s tender ages, the elder child’s influenced preference, and the possibility of trauma if the mother were convicted while the minors were in her custody, the court found no sufficient ground to make the rule absolute. It discharged the rule and dismissed the petition, while noting that if the mother were acquitted she could seek custody through the appropriate forum.

Case Details: Case No.: HABEAS CORPUS WRIT PETITION No. 389 of 2020 Case Title: Master Aryan and Another v. State of U.P. and 10 Others Appearances: For the Petitioner(s): Shams Uz Zaman, Advocate For the Respondent(s): G.A. (Government Advocate); Pankaj Bharti, Advocate; J.P. Tripathi, Advocate