In CRWP No.2374 of 2023-PUNJ HC- It would not be conducive to well being of child to be forcibly taken away from grandmother’s custody: P&H HC dismisses mother’s plea seeking custody of minor daughter who was sexually abused by her stepfather
Justice Manjari Nehru Kaul [24-03-2023]

Read Order: X VS STATE OF PUNJAB & OTHERS 

LE Correspondent

Chandigarh, April 7, 2023: While noting that it would not be conducive to the physical, psychological and emotional well being of the child to be forcibly taken away from the custody of her maternal grandmother, the Punjab and Haryana High Court has dismissed a habeas corpus petition instituted by the mother for appointment of a Warrant Officer to search, locate and recover the alleged detenue i.e. minor daughter and get her released from the illegal confinement of her grandmother. 

Justice Manjari Nehru Kaul dismissed the instant petition by observing that if the custody of either of the parents does not promote the welfare of the child, the custody can be refused and a third person, who is eligible and is taking good care of the child, would be entitled to retain his/her custody. 

Through an order dated March 13, 2023 this Court, while issuing notice of motion on the respondents, had also directed that a status report be filed on or before the next date of hearing i.e. today, with copy in advance to the learned counsel for the petitioner.

Counsel for the petitioner vehemently contended and alleged that the minor daughter, aged 9 years, of the petitioner had been illegally confined by her maternal grandmother i.e.  fourth respondent  qua which she made a complaint to the police, however, no action was taken. 

It was further contended  that the petitioner being a natural guardian of the alleged detenue had  a preferential right to the custody of the alleged detenue, who was her 9 year old daughter, however,  the fourth respondent was  not only illegally detained the alleged detenue but was  also poisoned and brainwashed her against the petitioner.  The Counsel urged that the petitioner had brought up the alleged detenue in healthy surroundings and also shared a close bond with her, and therefore, was entitled to her custody. 

On the contrary, Counsel for  the fourth respondent while controverting the submissions by the counsel opposite,  vehemently contended that the alleged detenue was  not in the illegal custody of  the fourth respondent  rather the petitioner had herself given the custody of her minor daughter to the  fourth respondent owing to the petitioner’s financial incapacity to pay for the alleged detenue’s tuition fees and other expenses after her marriage.

After considering the submissions from both the sides, the Court noted that the  alleged detenue, though came across to be a mature and intelligent child but seemed to be totally shaken. During the course of interaction, the relationship of the child with the petitioner as well as her maternal grandmother i.e.  the fourth respondent  was discussed and the child categorically and in no uncertain words stated that she did not wish to either meet much less stay with her mother i.e. the petitioner at all, the Court noted. 

 The child seemed to be much traumatized on account of the alleged sexual abuse by her step father. She was very distressed and disturbed while talking about the continuous sexual abuse done on her by her step father.

 On a pointed query put to her as to why she did not want to meet or stay with her mother, she categorically stated that when she brought the alleged instances of sexual abuse to the notice of her mother i.e. the petitioner, the latter admonished her and asked her to keep quiet about it. She also seemed very happy and comfortable staying with her maternal grandmother i.e. the fourth  respondent.   On being asked if she would wish to meet or talk with her mother i.e. the petitioner, she emphatically replied in the negative, the Court noted.  

The Court further reiterated that in matters pertaining to the custody of a minor child, the paramount consideration has to be the welfare of the child and child alone. The expression ‘welfare of the child’ has to be given the widest interpretation so as to ensure the overall well-being and development of the child. The custody of a child can be granted only after a satisfaction has been arrived at, by the Court that the same would be in the welfare and in the interest of the minor child.

“It would be pertinent to observe here that if the custody of either of the parents does not promote the welfare of the child, the custody can be refused and a third person, who is eligible and is taking good care of the child, would be entitled to retain his/her custody”, the Court further remarked. 

 In the present case, the fourth respondent was seemingly taking good care of the alleged detenue, i.e. the daughter of the petitioner and in the circumstances, particularly when an FIR not only stands registered against the petitioner’s husband under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, but as apprised by by the counsel for the respondent, he was also  arrested, the  Court noted. 

“No doubt, the petitioner, being a mother, is a natural guardian of the minor child, however, she cannot merely seek the custody of her daughter, the alleged detenue, on the strength of her legal right. In the present case, the petitioner, even after being apprised of the alleged sexual abuse by her husband, failed to come to the rescue of her minor daughter, i.e. the alleged detenue”,the Court opined.  

Therefore, the Court did not deem it fit to give her the custody of the alleged detenue to the petitioner. It would not be conducive to the physical, psychological and emotional well being of the child to be forcibly taken away from the custody of her maternal grandmother i.e.  the fourth respondent  and be handed over to the petitioner, especially when the alleged detenue  expressed her total disinclination to even meet the petitioner much less accompany her, the Bench noted while dismissing the petition.