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Synopsis

The Supreme Court on February 7, 2025, granted custody of a minor child, studying in Class VII, to his father. The child had been living with his maternal grandparents since 2021 following his mother’s death. The court held that the father’s remarriage cannot be a valid ground to deny custody to the natural guardian.

A bench of Justices B R Gavai and K Vinod Chandran agreed with the submission that the father was an educated person and held a responsible position having been appointed to the administrative services of the State.

Though he has re-married, it cannot stand against the claim for custody; especially since otherwise, there would have been a question raised as to how the child would be taken care of; the father being engaged in his work, the court said.

"Admittedly, the child, after his birth, was with his parents for about 10 years till the death of his mother. He was separated from the father in 2021 and has been living with his maternal grandparents, who cannot have a better claim than the father, who is the natural guardian," the bench said.

The court also noted there was no allegation of any matrimonial dispute when the mother of the child was alive nor a complaint of abuse perpetrated against the wife or son.

"The father, the natural guardian, we reiterate, is well employed and educated and there is nothing standing against his legal rights; as a natural guardian, and legitimate desire to have the custody of his child. We are of the opinion that the welfare of the child, in the facts and circumstances of this case, would be best served if custody is given to the father," the bench said.

The child's father challenged the high court’s order in a habeas corpus petition after it denied him custody. The child had been living with his maternal grandparents following the mother's death.

The single judge interacted with the child who submitted that he was comfortably residing and pursuing his education at his maternal grandfather’s house. It was also noticed that the father had re-married.

The high court opined that the welfare of the minor child; which was of paramount consideration, could be served by letting him continue with his grandfather; while the father was granted visitation rights to meet the child regularly on the first day of every month at the venue fixed by the jurisdictional Station House Officer.

Before the apex court, the father's counsel relied upon Gautam Kumar Das Vs NCT of Delhi and another (2024) which emphasises the need for the minor child to be with the natural guardian, especially when the mother is no more.

The counsel said the child did not have any familiarity with the father with the death of the mother in the year 2021. The counsel said the paternal grandfather of the minor child had conveyed a property in the name of the minor child to ensure his welfare and also deposited an amount of Rs 10 Lakhs in the child’s name.

He pointed out that the father who, an Administrative Service Officer of the State, though re-married, was confident that his second wife would look after the child as a mother. The counsel also cited an affidavit of the father's second wife who undertook to take care of the child as her own and endorsed fully her husband’s need and desire to have the child with them for the betterment of his future.

The counsel appearing for the maternal grandparents relied on Nirmala Vs Kulwant Singh & Ors (2024) in which the apex court had emphasised the requirement of a detailed inquiry regarding the welfare of the minor child and his preference; which could be carried out only in the proceedings under the Guardian and Wards Act, 1890.

He pointed out that the appellant-father had already initiated such a proceedings and in that circumstance, the plea for production of the child by a writ of habeas corpus was not at all maintainable.

He contended that the fact that the father had re-married, soon after the death of the first wife was rightly considered by the high court, in refusing the custody of the child to the father. The counsel argued that the appellant should be relegated to the remedy he had voluntarily invoked.

The bench noted in Tejaswini Gaud and others Vs Shekhar Jagdish Prasad Tewari and others (2019) the apex court had permitted the invocation of the extraordinary remedy seeking custody of the child under Article 226 of the Constitution, since the custody was sought by the father, the natural guardian of the minor child, from the sister and brother of the mother, who did not have any legal right to claim the custody of the child.

Gautam Kumar Das relied on Tejaswini Gaud to enable the natural guardian, the father, custody of a minor child, who was with the maternal aunts; in a petition under Article 226 of the Constitution of India, the court pointed out.

Quoting Nirmala, the bench said, it was also held that there can be no hard and fast rule insofar as the maintainability of a habeas corpus petition relating to custody of minor children; which would depend on the facts and circumstances of each case.

"In the present case also, the father is seeking custody of the child from the maternal grandparents who were also looking after the child with the help of the siblings of the mother; admittedly. The maternal grandfather had also initiated a proceeding for maintenance, claiming Rs 20,000 per month for the child; which makes it clear that the maternal grandparents are unable to look after the child by themselves," the bench said.

The court noted other factors like conveyance of a land in favour of the minor child by the paternal grandfather who had also deposited an amount of Rs 10 Lakhs only in the child’s name. The grandfather had also taken out a life insurance policy of Rs 25 Lakhs only, the beneficiary of which was the minor child.

In the case, the bench felt the high court had not endeavored to elicit the child’s attitude towards his father.

In its direction, the court said the child should be allowed to complete his academic year as he studied in a school near his maternal grandparents' house.

"We direct the child to be retained in the custody of the grandfather till 30.04.2025. While the child is continuing in the custody of the grand-parents, we permit him to be taken by the father; the appellant-herein, on alternate weekends to reside in his paternal house. The child shall be taken on the evening of Friday or the morning of Saturday and returned on the evening of Sunday. This arrangement shall continue upto 30.04.2025 till the custody of the child is handed over to the father; on 01.05.2025 in the presence of the jurisdictional Station House Officer," the bench ordered.

Moreover, the court allowed the maternal grandparents to have visitation rights, post-handing over of custody and directed that they should be permitted to take the child to their residence every weekend in which the second Saturday falls, starting from June, 2025. This arrangement should continue for an year and then, as per the desire of the child, it ordered.

Court closed the custody proceedings before the jurisdictional Family Court.

Case Title: Vivek Kumar Chaturvedi & Anr Vs State of UP & Ors