Woman Accused Of Killing Her Husband, Cannot Be Given Child’s Custody, Rules Allahabad High Court

OVERVIEW 

In a legal battle for the custody of a 2 year old girl between her biological mother and her late father’s maternal uncle, the Allahabad High Court said it is paramount for the Court to look into the interests of the ward before deciding on matters related to the custody of the child. 

It was in that respect that the Court said that the custody of a child cannot be given to her mother if she is accused of killing her husband. If such woman is acquitted of the murder charges, she can subsequently move the concerned competent court to seek custody for her child.

The court further said that, in the event of conviction of the mother, however rare it might be, the adverse effect of the subsequent separation will outweigh the temporary benefit garnered by the child if remains in her care and company at present.  

BACKGROUND

The petitioner in the instant case, Gyanmati Kushwaha, and the late Krishna Kushwaha, son of Suresh Kushwaha, were married, according to Hindu rites on November 11, 2011, at Shree Durga Bhavani Seva Mandal, Shivaji Nagar, B.M.C. Colony, Bandra East, Mumbai.

Such marriage did not receive consent or blessings from the families of the couple then, but later on, the marriage was again solemnized, in the presence of both the families on 26th November 2012.

On 28th May, 2017, their daughter Drisha Kushwaha was born to the couple.

On May 2018, Krishna Kushwaha went to visit his native place in Jhansi while his wife and daughter were staying at Mumbai. Two days into the visit, the petitioner received a call from the maternal uncle of her husband, Kamal Kushwaha, wherein she was informed of her husband’s murder and was asked to come down to Jhansi for the performance of the last rites and other formalities of her late husband.

Upon reaching Jhansi, she was taken to the Police Station, where she was informed, to her utter surprise, that she was being implicated for the murder of her husband.

On the 16th of May, 2018, the petitioner was booked into judicial custody when her daughter, Drisha, was snatched away by Kamlesh Kushwaha. On her release from jail on September 10, 2018 after her bail petition was granted by the Court, Kamlesh refused to transfer Drisha’s custody to her.

It was based on this pretext that the Allahabad High Court was moved by the petitioner to obtain her daughter’s custody.

FURTHER DETAILS

Gyanmati Kushwaha filed an application to the District Magistrate on  August 21, 2019 under Section 97 of the Code of Criminal Procedure (CrPC), 1973, with a case that her daughter Drisha was in illegal confinement of one Kamal Kushwaha, the maternal uncle of her late husband and father of the daughter whose custody is in question and that the minor may be released. No action was taken on such application.

The counsel for the Petitioner, Mohini Jaiswal, petitioned that she was the only surviving natural guardian after her husband Krishna Kushwaha’s death and therefore is entitled to Drisha’s custody. The provisions of Section 6(a) of The Hindu Minority and Guardianship Act,1956 were also cited. 

Under the proviso to Section 6(a), the mother has the right to the custody of a minor child until the age of five years ordinarily, which is quite apart from her right to the minor’s natural guardianship.

The Court assumes that “the possibility of conviction may be remote or not so remote, but the possibility is there. The existence of this possibility and the adverse impact of the event, if it were to come to pass, would far outweigh the transitory benefit the minor would derive from her mother’s care and company.”

Justice J.J. Munir passed the order of not granting bail to the petitioner while dismissing the Habeas Corpus petition of Gyanmati Kushwaha of Mumbai in the Writ of Habeas Corpus thus filed to seek the custody of her minor daughter.

CONCLUSION 

Justice J. J. Munir of the Allahabad Hight Court denied custody of her 2 year old minor daughter to a woman who had been accused with the charge of murdering her husband, who was the father of such daughter. The custody of the child is currently bestowed on the maternal uncle of the late husband of the petitioner who took custody of the child while her mother was in judicial custody.

The Court went on to say that “the fact of the matter apart, the possibility that the mother might truly be a conspirator in her husband’s murder, predicates a personality which would not be beneficial for the minor in grooming her about her moral values – a very important aspect of a child’s welfare.”

The Court further said that the petitioner, once acquitted of the charges of murder pressed against her, may move the concerned Court for seeking her daughter’s custody.

WHAT IS YOUR OPINION REGARDING THE OPINION OF THE COURT IN QUESTION OF THE CUSTODY OF AN INFANT CHILD? SHOULD THE MOTHER BE ALLOWED TO BE RESPONSIBLE FOR THE CARE AND CONCERN OF THE MINOR? LET US KNOW IN THE COMMENTS BELOW!