The Punjab and Haryana High Court has ruled that if granting custody to either parent does not benefit the child, custody can be given to a third party. In a custody battle between a mother and grandmother over a 9-year-old girl, the court refused to grant custody to the mother and allowed the grandmother to retain custody. Justice Manjari Nehru Kaul emphasized that while the mother has legal guardianship rights, she cannot solely claim custody based on those rights if it is not in the best interest of the child.
During the hearing of a habeas corpus petition filed by a mother seeking the appointment of a Warrant Officer to search for her minor daughter, who was allegedly being held by her maternal grandmother, Justice Manjari Nehru Kaul noted that if custody by either parent fails to promote the child’s welfare, a third party who is eligible and capable of providing good care to the child can be entitled to retain custody. The court made these observations while considering the mother’s plea for the recovery of her daughter.
The petitioner, who is the mother in the case, claimed that her minor daughter was being unlawfully detained by her maternal grandmother under the pretext of providing better education and care. As the natural guardian of the child, the mother argued that she had a preference for custody. She also accused her mother of poisoning and brainwashing the child against her. The petitioner further argued that the child’s life and liberty were at risk, and custody should be immediately given to her.
In response, the child’s maternal grandmother, a retired government employee, stated that the petitioner had previously given her custody of the child because she was financially incapable of paying for tuition fees and other expenses following her second marriage.
The child’s maternal grandmother also stated that after the minor started living with her, she revealed that her step-father had sexually abused her multiple times and threatened her with dire consequences if she told anyone. The grandmother claimed that when the child’s mother was informed of the abuse, she scolded the child instead of taking action against her husband.
The court heard that the grandmother had reported the abuse to the police and the State Human Rights Commission, resulting in an FIR being filed this month against the step-father under Section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012.
To ensure a fair decision, Justice Kaul personally spoke to the minor child involved in the case. During the conversation, the child clearly expressed her unwillingness to meet or stay with her mother. The court observed that the child appeared to be shaken and traumatized due to the alleged sexual abuse by her stepfather.
The child was visibly distressed while recounting the incidents of abuse. The court asked the child why she did not want to meet her mother, and the child stated that her mother had scolded her when she told her about the abuse. When asked if she wanted to talk or meet her mother, the child responded with a firm “no.”
The court noted that the child was content and happy staying with her maternal grandmother.
To ensure a fair decision, Justice Kaul personally spoke to the minor child involved in the case. During the conversation, the child clearly expressed her unwillingness to meet or stay with her mother. The court observed that the child appeared to be shaken and traumatized due to the alleged sexual abuse by her stepfather. The child was visibly distressed while recounting the incidents of abuse. The court asked the child why she did not want to meet her mother, and the child stated that her mother had scolded her when she told her about the abuse. When asked if she wanted to talk or meet her mother, the child responded with a firm “no.” The court noted that the child was content and happy staying with her maternal grandmother.
The court acknowledged that the maternal grandmother appeared to be providing adequate care for the alleged detenue, and noted that an FIR had been registered against the petitioner’s husband, who had also been arrested.
The court found that the petitioner had failed to protect her daughter from the alleged sexual abuse by her husband, despite being informed of it. Considering the alleged detenue’s expressed disinclination to even meet her mother, the court determined that giving custody to the petitioner would not be in the child’s best interest, particularly regarding her physical, psychological, and emotional well-being.
The court also highlighted that the petitioner had voluntarily given custody of the child to the respondent so that she could receive a quality education and be raised well. Accordingly, the court dismissed the petition.
Source: https://www.livelaw.in/news-updates/punjab-haryana-high-court-maternal-grandmother-mother-sexual-abuse-by-step-father-225074
In the end, what matters, is the welfare of the minor.
What is best for the child, should be done.
You are right