Minor needs tender care that mother alone can provide: Allahabad High Court in child custody case
Allahabad High Court

Minor needs tender care that mother alone can provide: Allahabad High Court in child custody case

"The fact that the mother walked away from her husband’s home without securing a divorce ... is not so depraved or immoral as to deprive the mother of her special place in the minor’s life," said the Court.

A case involving the custody over a child of tender years recently saw the Allahabad High Court make pertinent observations regarding presumptions made in favour of the mother in the law when it comes to the care of minor children.

In the case at hand, the Court observed that while the child may not be an infant, he still needed the tender care that the mother alone could provide.

Justice JJ Munir observed,

"... the minor, though above the age of five years, is still a child of tender years. He may not be an infant, who needs to be weaned away from his mother, but he still needs the tender care that the mother alone can provide."

On the manner in which the law treats such cases, the Court notes,

"The legislative edict, carried in the proviso to Section 6(a) of the Act of 1956 (Hindu Guardianship and Maintenance Act), is an expression of trust in the mother, that up to the age of five years, ordinarily a minor’s interest would be better secured by the mother. This trust expressed in the mother is something that emanates from human nature. Five years is not a statutory cut off date after which the right, as it were, gets divested from one and vested in the other. The age mentioned in the proviso to Section 6(a) is no calibrated formula. It indicates a thought that young children are presumed to be better cared for by the mother, unless something is shown in the circumstances to outweigh that precipitate experience of mankind spread across eons."

These observations were made while hearing a habeas corpus writ petition filed by a man alleging that his minor son was in the unlawful custody of his estranged wife. The petitioner prayed that the custody of the son be entrusted to him.

The Court took note of submissions that the mother had walked away from her husband's (the petitioner's) home without securing a divorce and entered into a new relationship with another man, who she claimed to have married.

This claim was contested on the ground that her first husband was still alive and since she had not obtained a divorce from the first marriage. The petitioner pressed for the custody of his minor son in view of the mother's second relationship as well, contending her conduct to be immoral and placing her son's life in peril.

The Court, however, rejected this contention, observing,

"The fact that the mother has walked away from her husband’s home without securing a divorce and entered into a new relationship ... may be something that the law and the society frown upon, but, in itself, is something not so depraved or immoral as to deprive the mother of her special place in the minor’s life."

The Bench ultimately focused on the welfare of the child in determining how the issue of custody must be decided. In this regard, the Court underscored that it had a duty to examine whether the minor would be safe and his welfare taken care of.

On an examination of facts and interactions with the petitioner, his child and the mother, the Court opined that the minor was well-adapted to the mother's new family. On the other hand, the Court found the petitioner reluctant when queried on whether he could take care of the minor child. Moreover, the Court observed that the child himself indicated that he did not want to go with his father.

As such, the Court decided that the dominant and substantial custody of the child would remain with the mother. However, observing that a minor cannot be deprived of the company of his father, the Court directed that the minor should be taken to his father's home once every two months.

With these directions, the plea was disposed of.

Read the order here:

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Anmol Shivhare (Minor) v State of UP and 4 Others HABC(A)_61_2020.pdf
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