In a unique case reported from North India, a child custody battle of a 9-year-old girl was being fought between a mother and her mother (grandmother of the child).
Concluding the matter, the Punjab & Haryana High Court in its order dated March 24, 2023 refused to hand over the girl to her mother, while allowing the maternal grandmother to retain her custody.
The High Court remarked:
If the custody of either of the parents does not promote the child’s welfare, it can be handed over to a third person.
The instant petition has been filed by the petitioner mother seeking issuance of a writ in the nature of habeas corpus for appointment of a Warrant Officer to search, locate and recover the alleged detenue i.e. her minor daughter namely Ms Kaur aged about 9-years, and get her released from the illegal confinement of respondent No.4 who is none other but the mother of the petitioner herself (maternal grandmother of the minor child).
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Allegations & Submissions by Petitioner
Learned counsel for the petitioner has vehemently contended and alleged that the minor daughter of her client has been illegally confined by her maternal grandmother and despite a police complaint, no action was taken. She has further submitted that on 09.12.2022, the respondent grandmother after pressurising the petitioner, took away the grandchild with her on the pretext of providing her good schooling and better care.
Subsequently, on 28.12.2022 the grandmother informed the petitioner over a video call that she had detained the alleged detenue and further refused to let the petitioner even meet the alleged detenue or talk to her. Learned counsel has contended that the petitioner being a natural guardian of the alleged detenue has a preferential right to the custody of the alleged detenue, however, the grandmother has not only illegally detained the alleged detenue but has also poisoned and brainwashed her against the petitioner.
Learned counsel has urged that the petitioner had brought up the alleged detenue in healthy surroundings and also shares a close bond with her, and therefore, was entitled to her custody. It has lastly been contended that there existed a grave threat to the life and liberty to the alleged detenue and thus, her custody be immediately given to the petitioner.
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Defense by Respondent (Maternal Grandmother)
The respondent vehemently contended that the alleged detenue is not in the illegal custody, rather the petitioner had herself given the custody of her minor daughter to the her, owing to the petitioner’s financial incapacity to pay for the alleged detenue’s tuition fees and other expenses after her marriage with one Hardip Singh on 01.11.2018, who she had married after obtaining divorce from her first husband.
Learned counsel has contended that when the alleged detenue started living with her maternal grandmother, she disclosed and confided in the latter that her step-father Hardip Singh had sexually abused her on multiple occasions and even threatened her of dire consequences in case she revealed or complained against him to anyone.
It has been further submitted that when the alleged detenue told about the same to the petitioner i.e. her mother, the latter instead of taking any action against Hardip Singh, admonished her minor daughter. Even when the grandmother confronted the petitioner with the said facts, the petitioner behaved brazenly with her.
Thereafter, the grandmother approached the police and the State Human Rights Commission for taking action against the alleged detenue’s step-father. Subsequently, an FIR dated 20.03.2023 was registered against Hardip Singh under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The learned counsel submitted that grandmother being a retired Government employee, is taking very good care of the alleged detenue and they share a healthy bond, so much so the alleged detenue was not even keen to go back to the petitioner.
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Punjab & Haryana High Court
Justice Manjari Nehru Kaul went through evidences and details on record and observed that no doubt the child’s mother is her natural guardian, but she cannot merely seek the custody of her daughter on the strength of her legal right. The High Court strongly remarked:
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.
Judge Interacts With Minor Child
To be fair and arrive at a just order, Justice Kaul interacted with the child in her chamber, where the girl categorically and in no uncertain words stated that she did not wish to either meet or live with her mother. The Judge observed:
The alleged detenue, though came across to be a mature and intelligent child, but seemed to be totally shaken.
The child seemed to be very 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.
When the Judge once again asked the child why she did not want to live with her mother, the girl narrated how 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.
The court also noted that the minor girl seemed very happy and comfortable staying with her maternal grandmother.
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Welfare of Child Paramount
The bench further observed 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.Justice Manjari Kaul added,
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 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.
The Court also noted that the maternal grandmother was seemingly taking good care of the alleged detenue. The Court further acknowledged how the grandmother had filed an FIR against her daughter’s second husband and also got him arrested on charges of sexually abusing her granddaughter. The Court said,
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.
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Custody to Remain with Grandmother
The Court did not find the case to be fit for handing over custody of the minor girl to her mother, citing that by doing so it would not be conducive to the physical, psychological and emotional well being of the child, “especially when the alleged detenue has expressed her total disinclination to even meet the petitioner much less accompany her.”
Dismissing the petition of the mother, the High Court concluded:
Further, it may also be pertinent to point out here that the custody of the child was handed over to respondent No.4 by the petitioner herself out of her own free will so that the child could attend a good school and be brought up well.
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READ ORDER: Mother Failed To Protect Minor Daughter From 2nd Husband's Sexual Abuse; Punjab & Haryana HC Grants Custody To Maternal Grandmother— Voice For Men India (@voiceformenind) April 2, 2023
▪️Woman remarries after divorce
▪️Daughter complains of sexual abuse from step father
▪️Mother asks her to remain quiet
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