Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Sisters of deceased wife -- Natural father – Right of -- Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother -- At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child -- Merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child and only because they  looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian -- Respondent Nos. 5 and 6 directed to handover the custody of the minor child forthwith – Meeting rights given for every Wednesday between 04:00 pm and 06:00 pm.

(Para 13-17)

A. Constitution of India, Article 226 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of child -- Writ of Habeas Corpus – Maintainability of -- Habeas corpus is a prerogative writ which is an extraordinary remedy -- Recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective -- In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody -- In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law -- There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature -- What is important is the welfare of the child -- Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court -- No hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child – It will depend on the facts and circumstances of each case.

(Para 16)

B. Constitution of India, Article 226 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of child -- Writ of Habeas Corpus – It is not a case that the appellant-grandmother had illegally kept the custody of the minor child -- It is the respondent-father who had placed the custody of the minor child with the appellant-grandmother -- High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India -- Compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances – Paramount interest of the welfare of the minor child would be required to be done -- Such an exercise would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution of India – Order of High Court set aside.

(Para 18-23)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- What is 'welfare of the child' depends upon several factors -- It has to be measured not only in terms of money and physical comfort, but also in view of the age of the child and the manner, in which, 'needs' can be fulfilled, more particularly, moral and ethical aspects of the shaping of the minor's personality -- Legal right or the financial affluence is not decisive, but the welfare of the minor is decisive for the claim of the custody.

(Para 8)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Wish/ Desire/ Welfare of child -- It has to be borne in mind that the question ‘what is the wish/  desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’ --  Certainly, the wish/ desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the Court, while taking into account, all the relevant circumstances.

(Para 9)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- Unless and until, there is proven bad conduct of one of the parent, which makes him/ her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘what would be the best interest of the child concerned’.

(Para 9)

D. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of girl child – Visiting rights -- Aspect of age of the child weighs in the mind of the Court – Mother is qualified doctor, girl child being of 10-11 years is passing through the formative stage of life -- At this stage, the mother can be the best friend, guide and mentor for the growing daughter -- She is already residing with the mother and therefore, no further change in the arrangement, already existing, shall be beneficial to the child -- Girl child allowed to meet the petitioner, her father, twice a month.

(Para 10-16)

Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Custody of child – Permanent custody to mother -- Interim custody to father – Right of -- Father has the right to interact with the child when the permanent custody of the child is entrusted with the mother -- Long gap in the interaction between the father and the son -- So, there shall be an opportunity first to restore the emotional intimacy between them -- Appellant allowed to interact with the child through video call for 2 months, in order to establish an emotional bond between the father and the son -- After that appellant to approach the Family Court to consider his request for the interim custody of the child.

(Para 14-16)

Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Code of Civil Procedure, 1908 (V of 1908), Order 16 Rule 20 – Custody of child – Closing of evidence -- Sufficient opportunity -- Evidence of petitioner-husband started on 05.09.2018 and the same was ordered to be closed on 09.10.2018 – It appears that no fair and adequate opportunity was ever granted to petitioner-husband, so as to conclude his evidence -- Wherein, substantial rights of the parties are involved and that too, pertaining to the custody of their children and the result of passing of the impugned order is going to be that the petitioner-husband would not be able to support his defence taken in the written statement, which may, cause serious prejudice to him this regard – Impugned order set aside, petitioner-husband granting two effective opportunities to conclude his evidence before the trial court.

(Para 7-10)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Special Marriage Act, 1954 (43 of 1954), Section 28, 38 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Suit for custody of child -- Rejection of plaint – Consideration of pleading other than plaint – Permissibility of – Previously divorce by mutual consent between the parties – Voluntarily statement of father for giving the custody of the child to the mother -- Though it is well settled principle of law that for the purpose of deciding an application under Order VII Rule 11 CPC, the contents of the plaint/petition is to be seen, however it is a case of not deciding the rights of the parents but the custody of minor child, therefore welfare of the child should be the paramount consideration -- Circumstances from the date of birth of the child till date needs to be appreciated -- Respondent-husband has remedy to approach the said Court, which has passed the decree of divorce if any terms and condition were violated -- Petition u/s 25 of the Guardian and Wards Act held not maintainable and rejected, leaving the respondent-husband to avail alternative remedy, in accordance with law -- Application under Order VII Rule 11 C.P.C. allowed.

(Para 21-23)

Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6, 8 -- Writ of habeas corpus – Custody of new born child -- Agreement of adoption before birth – Petitioner is natural mother, no registered agreement -- Hindu Adoptions and Maintenance Act, 1956 does not envisage an agreement to adopt a child, who is not yet born -- Thus, respondent Nos. 4 and 5 cannot claim to be in lawful custody of the minor child in question -- Writ petition allowed and respondent Nos. 4 and 5 are directed to hand over the custody of the baby boy to the petitioner forthwith -- It is open to respondent Nos. 4 and 5 to take steps to enforce any agreement, which they have, in an appropriate Court of law.

(Para 1-5)

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Guardians and Wards Act, 1890 (8 of 1890) , Section 25 -- Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus – Scope of -- Where the court is of the view that a detailed inquiry is required the Court may decline to exercise the extraordinary jurisdiction of a Writ Court and direct the parties to approach the Civil Court -- It is only in exceptional cases, where the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction in a petition for Habeas Corpus -- Where in the circumstances of a particular case the ordinary remedy of the Civil Courts is either not available or is ineffective, a writ of Habeas Corpus is certainly maintainable, moreso, where it is shown that the detention of the minor child by a parent or others was illegal, without any authority of law and was also to the detriment of the child.

(Para 16)

B. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6, 13 – Guardians and Wards Act, 1890 (8 of 1890) , Section 25 -- Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus – Paramount consideration ought to be the welfare of the child and due weight should be given to the child's comfort, contentment, health, education, intellectual development, familiar surroundings etc. -- Question of the welfare and interest of a minor child has to be judged on the consideration of the acknowledged superiority of the mother's love and affection for her children -- Girl child is less than five years old -- She was brought back to India by respondent no. 7 and 8 (grand-parents) on 23.1.2020 after which due to COVID-19 the petitioner-mother was unable to see her till March 2022 -- Even if the child had refused to go with the mother, that by itself does not have any significance as a child of such tender age does not know what is in her best interest -- Minor girl child may have developed a bond with the respondent nos.7 & 8 with whom she is residing for the last more than two years because of which she might have stated that she does not wish to go with her mother -- However, in the long term for the benefit and welfare of the child, by no stretch of imagination can it be said that the welfare of the child would be better taken care of by the grandparents viz-a-viz the mother -- Even otherwise, in the case of child who is less than 05 years old the custody should ordinarily be with the mother – Petition allowed, custody of the minor child ordered to be handed over to the petitioner (mother) immediately.

(Para 17-21)

Guardians and Wards Act, 1890 (8 of 1890), Section 7 -- Death of Parents – Interim custody of Child – Grandparents compare to maternal aunt -- Custody of the minor remained with the grandfather pursuant to the interim order passed by the High Court -- Nothing observed by the High Court that during the interim custody period, the appellant-paternal grandparents did not take proper care of the minor and acted detrimental to the interest of the minor – Minor also shown willingness to stay with the appellant – They have also managed to get admission of the minor in a school in Ahmedabad -- Minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod where maternal aunt resides -- Being a retired person, the paternal grandparents would devote more time and take care of minor better than respondent No. 4 who is serving in the government department – Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents – Held, High Court has committed an error in not handing over and/or continuing the custody of the corpus-grandson to the appellant-paternal grandparents and to give custody of the corpus to respondent No. 4-maternal aunt of the corpus -- Custody ordered to be given to grand-parents subject to the final outcome of the proceedings u/s 7 of the Guardians and Wards Act, pending before the competent court.

(Para 7.1-8)

Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Appellant/ father is a drug-addict; he is facing trial in six cases under the NDPS Act and remained behind bars in those cases from time to time -- Further, the age of the child was below five years, therefore, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, custody of the minor child has rightly been given to the respondent/ mother -- Moreover, no offer has been made by the appellant to secure the future of the minor child – Appeal by father dismissed. Roxann Sharma’s case 2015 AIR (SCW) 2925 relied.

(Para 1,3,4)

A. Constitution of India, Article 226 -- Custody of child – Writ of habeas corpus – Paramount consideration – For issuance of a writ of habeas corpus for the custody of a child as what is of paramount consideration is the interest and welfare of the child.

(Para 13)

B. Constitution of India, Article 226 -- Custody of child – Writ of habeas corpus – Foreign judgment of divorce and custody – Effect of -- Parties had gone to Australia in furtherance of their career prospects -- Child was born in Australia and in initial years was brought up there – Petitioner-mother and respondent-father have divorced and a decree in this regard has been passed by a court in Australia – Order had been passed by the Federal court in Australia, directing the respondent-father to return the child to Australia -- Judgment of a foreign court would not be the only factor while considering the issue of custody of a child to a parent -- It would only be one of the factors for consideration and would be subservient to the paramount consideration of the interest and welfare of the child – When there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia – Court considered that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.

(Para 14-22)

C. Constitution of India, Article 226 -- Custody of child – Writ of habeas corpus – Extra-marital relationship of mother -- Effect of – Extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child – Petitioner-mother and respondent-husband have divorced and a decree in this regard has been passed by a court in Australia -- These allegations against the petitioner being wholly unsubstantiated are not considered relevant to adjudicate the issue of custody of the minor child -- Child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia – It would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.

(Para 14-22)

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 13 -- Guardians and Wards Act, 1890 (8 of 1890), Section 17 -- Custody of minor child – Appointment of Guardian -- Section 17 of the Guardian Act as well as Section 13 of the Minority Act leave no manner of doubt that the welfare of the minor is the paramount consideration to be kept in mind by the Court while appointing a guardian.

(Para 7)

B. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) -- Custody of minor daughter -- In the application pleaded case that the petitioner is a postgraduate and that she worked as a teacher in Delhi Public School for 10 long years not controverted by the respondent in his written statement and thus, it can safely be concluded that the petitioner is a well-educated and qualified lady -- During the course of arguments, it has been submitted that she has taken up a job as a teacher in a school in Panchkula in June-July, 2019 after she resigned from Delhi Public School in February, 2019 -- Respondent has not been able to controvert this statement and thus, it can also be concluded that she possesses means to maintain her children -- Best interests of the children lie in the custody of their mother – Girl is under 05 years of age and in view of Section 6(a) of the Minority Act, her best interests would definitely be served in the custody of the mother – Other daughter cannot be separated from his sister as the same would traumatize both of them -- Impugned order passed by the trial Court is set aside, direction given for transfer of custody of the minor children to the petitioner within 07 days -- Respondent/ father shall have visitation rights on 1st and 3^rd Saturday of every month.

(Para 8-10)

Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 (a) – Custody of minor – Writ of habeas corpus – Maintainability of -- Writ of habeas corpus would be maintainable to seek the custody of the minor child who is at the tender age of about 4 years -- Petitioner, a mother, entitled to maintain the writ of habeas corpus -- Detenue being a minor and under the age of 5 years should ordinarily be in the custody of the mother as stipulated u/s 6 (a) of the Hindu Minority and Guardianship Act, unless the respondent is able to establish that she is unfit to do so – Writ allowed, custody given to the petitioner – Respondent no. 5 / Father is at liberty to approach the Guardian Court/Civil Judge for custody of the minor in accordance with law.

(Para 9-12)

Guardians and Wards Act, 1890 (8 of 1890), Section 12, 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6, Proviso -- Custody of minor children below 5 years -- On the date of separation from the husband, the daughter was about 2 ½ years of age and the son was about 5 years of age -- Application for interim custody by mother rejected on the ground that the father is looking after the minor children very well – At the time of passing impugned order, boy was 8 years and girl 4-1/2 years old – Held, proviso to Section 6(a) states that custody of a minor below 5 years of age shall ordinarily be with the mother, it does not stipulate that under all circumstances a child below 5 years must remain in the company of the mother -- Children are getting all the love, affection and care from their father -- There is no bar in law in their custody remaining with the father -- Revision petition filed by mother dismissed.

(Para 1-6)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 7, 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of child – Better education – Role of -- Respondent-mother is an educated lady and when the custody of the daughter was given to her mother during the examinations period, her results were good, meaning thereby, the respondent-mother is more capable of providing quality education to her daughter than the appellant-father which is the most essential ingredient for the welfare, betterment and all round developments of the minor girl -- Thus, there is no occasion to displace her residence by giving custody of the girl child to the appellant-father.

(Para 15)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 7, 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of Female child – Respondent-mother is the best person to educate and bring up her minor daughter and to effectively take care of her interest and welfare -- Mother shapes child’s world from the cradle by rocking, nurturing and instructing her child -- Particularly, the company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother -- Especially for a growing girl of the age of 13 years which is her crucial phase of life being the major shift in thinking biologically which may help her to understand more effectively with the help of her mother and at this crucial teen age, her custody with the mother is necessary for her growth -- At this growing age, daughter looks for mother/a female companion with whom she can share and discuss certain issues comfortably -- There would be so many things which a daughter could not discuss with her father and as such mother shall be the best person to take care of her daughter at this growing age.

(Para 17, 18)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 7, 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of female child to mother – Visiting rights to father -- Keeping in view the fact that a child needs the love and affection of both the father and the mother and anticipating optimistically that the girl child may serve as a bridge to fill the gap between the parents and the father-appellant also being the natural guardian of the girl child, the appellant-father is given visitation rights for meeting his daughter and for this purpose, he shall be at liberty to visit the child twice a month preferably on 2nd and 4^th Saturday(s) at the place and time mutually agreed between the parties and the respondent-mother shall not object to him meeting with the child and the respondent-mother will also allow the child to meet with the father during school vacations or on appropriate occasions.

(Para 22)

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Custody of minor child – Natural guardian – Right of -- No doubt, u/s 6 the father is a natural guardian of a minor child has a preferential right to claim its custody but Section 6 cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child -- Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

(Para 12)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Writ of habeas corpus – Maintainability of -- Writ of habeas corpus can be issued for restoration of custody of a minor to the guardian wrongfully deprived of it -- However, exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents -- Welfare of the child is not to be measured by money only nor merely physical comfort -- The word 'welfare' must be taken in its widest sense -- Moral or religious welfare of the child must be considered as well as its physical wellbeing.

(Para 13-18)

C. Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus by mother – Minor girl child removed from Canada and brought to India – Whether paramount consideration of the welfare and best interest of the minor girl child lies in return to Canada or continued stay in India -- Both the parents are permanent residents of Canada, are gainfully employed in Canada and have purchased house in Canada and father has not wound up and left employment in Canada and permanently settled in India -- Child has spent major part of more than five years of her life of six years in Canada resulting in her integration with the social, physical, psychological, cultural and academic environment of Canada – On the basis of the summary inquiry, for the welfare and in best of interest of the minor girl child direction given to father to return to Canada alongwith minor daughter on or before 01.01.2021; fails to comply with direction, father shall hand over custody of the minor girl child and her passport to the petitioner on 02.01.2021 or such other date as may be agreed to by the petitioner -- On such return of the minor girl child to Canada, either of the parties shall be at liberty to file appropriate application/petition for appointment of guardian, grant of custody of the minor girl child before the Court of competent jurisdiction.

(Para 29-32)

Guardians and Wards Act, 1890 (8 of 1890), Section 6, 9 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8, 12, 25 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Custody petition by mother at Chandigarh -- Territorial jurisdiction – Expression ‘minor ordinarily resides’ – Interpretation of -- Daughters aged about 4 and 3 years residing at Noida with father – Application for rejection of plaint moved by father dismissed by Guardian Judge, Chandigarh – Expression ‘minor ordinarily resides’ used in Section 9 has to be interpreted to mean residence of the mother – Custody of minors under five years of age would naturally lie with the mother – Thus, custody of the minor is deemed to be with the mother irrespective of the actual custody being with the father – Held, no illegality, irregularity or infirmity in the impugned order passed by the learned Guardian Judge, Chandigarh, which calls for any interference in exercise of revisional jurisdiction.

(Para 3, 5-8)

Constitution of India, Article 226 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(iv), 41 -- Writ of habeas corpus – Foster care order by Child Welfare Committee with incomplete coram on gazetted holiday – Colourable exercise of powers –Order passed by the Child Welfare Committee is totally silent about the factum of petitioner and his family being unfit or incapacitated for taking care and for protection and well-being of the child -- Counselling report would show that the Counsellor interacted with the minor and found that the minor was living happily with her father and also wanted to reside with him – Since the order passed by the Child Welfare Committee is found to be the result of colourable exercise of powers, therefore, Court deemed it appropriate to restore the custody of the minor in favour of the petitioner -- In the event of filing any petition under the relevant statute for custody of minor in regular proceedings, the same shall be decided in accordance with law -- Custody of the child ordered to be handed over to the petitioner.

(Para 19-23)

A. Constitution of India, Article 226 -- Writ of habeas corpus for custody of minor – Maintainability of -- It is well settled that writ of habeas corpus can be issued for restoration of custody of a minor to the guardian wrongfully deprived of it -- However, exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents.

(Para 18)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Writ of Habeas Corpus by mother (resident of Australia) for custody of minor son -- Child born as well as resident of Australia – Now residing with grandmother and studying in School in India -- Contention that the Family Court/Guardian Court in India has no jurisdiction is not legally sustainable -- Facts and circumstances of the case do not warrant issuance of a writ in the nature of habeas corpus by handing over its custody to the petitioner -- It is in the welfare of the minor child that respondent no.3 / grand-mother be allowed to continue to have its custody subject to order of the Family Court/Guardian Court at Ambala, where the minor child is now ordinarily residing and that the petitioner be accordingly directed to approch the Family Court/Guardian Court at Ambala for adjudication of the question of entrustment of custody of the child to the petitioner for its repatriation to Australia.

(Para 6, 43-46)

A. Constitution of India, Article 226 -- Custody of 4 years old minor daughter with father – Writ of Habeas corpus by mother -- Maintainability of -- Merely because other remedies are available to the parties, would not render the present petition not maintainable.

(Para 11)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of 4 year old minor daughter with father – Writ of Habeas corpus by mother – Temporary custody given to mother – Held,

-- Minor daughter is suffering from a congenital problem -- Father of the child has appended medical proof of her treatment along with the expenses being borne by him towards the said treatment -- Same would go on to show that the upbringing of the minor child has to be with extra care and attention in constant presence of other family members when the parents are away.

-- Paternal grandmother of the minor daughter is since deceased -- It is only the grandfather and the father of the minor daughter who live with her at the paternal house – Petitioner has taken a permission from her employer to work full time from home – Parents of petitioner are currently staying with her -- She along with them is in a better position to look after the daughter full time, while there is no female attendant at the house of father.

-- She is merely four years and ordinarily, per Section 6 of 1890 Act, custody of a minor who is less than five years has to be with her mother -- No doubt, the above provision postulates that the custody shall “ordinarily” be with the mother -- But the word “ordinarily” is to be construed to mean that unless, prima facie, it is shown otherwise by the father that child would be better taken care of by deprivation of motherhood -- Father must then give some cogent reasons, indicative of the welfare and interest of the child being jeopardized or the exclusive motherhood being imminently non-conducive to the upbringing of child -- Spirit of section 6 hypothesizes that, given the tender age of a minor, suitability of custody is not the predominant factor, what is more relevant or should weigh, is the requisite biological and natural environment, which gives rise to a general presumption that mother is first and best suitable for child care of a minor that age.

-- Minor daughter cannot be stated to be in illegal or unlawful custody, however, since the minor daughter is less than five years, the mother is, therefore, entitled to the benefit of Section 6 -- Until the prayer of the parties qua custody of the minor child is decided by Guardian court, the welfare and interest of the minor child would be better in the hands of mother-petitioner.

-- Temporary custody of the minor given to the petitioner till any further appropriate orders are passed by the Guardian/ Civil Judge.

-- However, clarified that observations are mere obiter dictum in nature. Same would not effect the merits of the permanent custody petition which has been filed by father or interim custody application, if chosen to be filed by him, per liberty granted by this Court -- Guardian/ Civil Judge shall not get influenced with these tentative observations while deciding either of those on their own merits.

(Para 11-18)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Study of child – Son aged 10 year is not willing to study in School at Delhi attached with the Boarding House – He wanted to study on old School at Shahjanpur – Held, Child cannot be compelled to study at Delhi – In the interest and welfare of child, he shall be allowed to continue his study at Shahjanpur, where mother reside.

(Para 3-7, 14)

B. Maintenance to wife – One Forum -- High Court directed the appellant-wife to elect one forum from which she wants to get the maintenance -- As the same is not in conformity with the law, the said direction is liable to be set aside.

 (Para 14)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Visitation right to father – Father is entitled to visitation rights – Permission given to husband to visit his child and he is entitled to take the child from the House of the appellant on any Sunday’s and public holiday’s whenever he visits Shahjanpur -- Appellant-wife shall allow the child to leave along with the respondent-father at 09:00 a.m., and the respondent-husband to return the child at the house of the appellant-wife before 06:00 p.m. on the same day.

(Para 15)

Guardians and Wards Act, 1890 (8 of 1890), Section 8,12, 25 -- Indian Penal Code, 1860 (45 of 1860), Section 306 -- Custody of children -- Suicide by wife – FIR u/s 306 IPC against husband – Acquittal of husband – Where pursuant to the suicide of the mother, without knowing the circumstances leading to the death and further without waiting for the outcome of the criminal trial, if the minors are put in the custody of the maternal grandparents, they would always end up in believing anything against the father -- As of now, the children are of the age of 11 years and 8 years respectively -- Trial Court’s finding that the respondent-father should be allowed to exercise his right of custody of the children, cannot be found fault with.

(Para 13)

Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6(a) – Custody of child -- Proceedings for custody initiated u/s 25 of the Guardianship Act, however, the same are to be read in consonance with the provisions of the Hindu Minority and Guardianship Act, 1956 – While passing the order(s) as regards the custody of the minor child, the Court has to take into consideration the welfare of the ward – Child in the instant case is around two years and two months of age -- Custody is to remain with the mother.

(Para 11-14)

Family Courts Act, 1984 (66 of 1984), Section 6, 9, 12 -- Family Courts (Procedure) Rules, 1992 (Delhi), Rule 8(viii) – Code of Civil Procedure, 1908 (V of 1908), Section 89 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 75, 81 -- Delhi High Court Mediation and Conciliation Rules, 2004, Rule, 20 -- Custody of child -- Mediation / Conciliation – Confidentiality of – Requirement of – Paramount consideration ought to be to see what is in the best interest of the child -- Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator -- But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child.

(Para 24-31)

Code of Civil Procedure, 1908 (V of 1908), Section 13, Order 7 Rule 11 – Guardians and Wards Act, 1890 (8 of 1890), Section 7, 9 -- Foreign judgment / decree – Custody of child – Rejection of plaint – At the time of consideration of application under Order 7 Rule 11 CPC, only averments made in the plaint are to be seen – Since minor cannot be party to the lis between the parents, any order passed on consent of the parents is not binding upon the minor -- Sub Clauses (c), (d) and (f) of Section 13 CPC may give rise to certain questions which are required to be answered by the competent Court after receiving evidence from the parties -- Foreign judgment cannot be a solitary point for decision of the custody issue before the Court under Section 7 read with Section 9 of the Guardians and Wards Act, 1890 -- Scope of Order 7 Rule 11 CPC cannot be applied as triable issues are involved.

 (Para 24-27)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- Interest and welfare of the minor is of paramount importance -- While deciding the better rights of either parent would not be of great significance -- Factors to be borne in mind by the Court while allowing custody to a parent is to see the desire of the child along with the availability of a conducive and appropriate environment for proper upbringing and further the ability and means of the concerned parent to take care of the child -- Desire, interest and welfare of the minor is the crucial and ultimate consideration.

(Para 11)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- At the time of granting divorce, it was agreed by both the parties that they will not file any suit/proceedings against each other nor the father-appellant shall file any petition for the custody of the minor -- In such circumstances, the petition now filed for custody of the minor cannot be held to be bonafide especially when the father has not been able to demonstrate that there was negligence on the part of the respondent-wife to maintain him and act of the respondent-wife was not for the welfare of the child.

(Para 12)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- No evidence to show that the minor was not happy in the company of his mother-respondent -- She appeared to be in a position to look after the minor and provide with adequate educational facilities and also to maintain him in a proper and congenial manner -- Further, the appellant had contracted second marriage and his second wife was having a child with her -- Moreover, the interest of the minor would be better served by allowing him to remain in the custody of the respondent – Held, it would not be in the interest of the minor to dislodge him from his natural mother.

(Para 12)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- Courts while adjudicating the issue of custody of minor has to ensure that the interest and welfare of the minor is of paramount importance -- While deciding the issue of custody of minor, the better rights of either parent would not be of great significance -- Factors to be borne in mind by the Court while allowing custody to a parent is to see the desire of the child along with the availability of a conducive and appropriate environment for proper upbringing and further the ability and means of the concerned parent to take care of the child.

(Para 9)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- All other factors cannot be said to be irrelevant but it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

(Para 9)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- Father of the minors is the natural guardian, though custody of a minor who has not completed the age of five years shall ordinarily be with the mother, and has the right of custody unless the Court comes to the conclusion that the father is unfit to have the custody and that it is not for the welfare of the minor that the father should be allowed to exercise his right.

(Para 10)

D. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child -- Guardianship is in the nature of a sacred trust – Father had not produced any evidence to show that the daughter was not happy in the company of her mother or her parents -- Child being a daughter, her wish was of paramount consideration -- Girl child is now more than 14 years of age – Father had miserably failed to prove that welfare of the daughter would be better served if the custody is granted to him – Held, it would not be in the interest of the daughter to dislodge her from her natural mother and maternal parents when there were no specific reasons or evidence produced on behalf of the father to do so.

(Para 10)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6,8 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 26 -- Custody of daughter – Visitation right to father – Whatever be the background of the case, it cannot be so acrimonious so as to deny the right of the father to see his daughter – Direction given respondent to produce the child in the Family Court, on the 3rd Saturday of every month at 11.00 AM and permit the child to interact with the father upto 01.00 PM -- It will be open to the grand parents also to be present along with the father.

 (Para 3, 4)