- The Hon’ble Patna HC, in GGSS Sitara vs The State of Bihar and ors. has held that the proviso to section 6 of the Hindu Adoption and Maintenance Act (HAMA), though carves out an exception but does not render the custody of the minor child aged below 5 years with his/her father illegal.
- In the instant case, the petitioner and the respondent were married in accordance with the Hindu rites and ceremonies and they had a son and a daughter out of the wedlock. The daughter was in the custody of the father-respondent, while the son was in the custody of the mother-petitioner.
- Due to the marital discord between the couple, a case had been registered for the offences under sections 298A, 279, 337 and 338 of the Indian Penal Code. It was the case of the petitioner that the respondent had no control over his rage and that he had brutally assaulted her on two separate occasions, following which she was compelled to shift to the government quarter in Muzaffarpur along with her two children.
- It was further alleged that she had been meeting the expenses of her children with the help of her mother, and had thus filed a petition for maintenance for herself and her two children. The petitioner’s mother had also filed a domestic violence case against the respondent.
- In the petition, it was also stated that the respondent visited the circuit house and took the girl child along with him with a promise to return her after a couple of days. However, he had not fulfilled his promise and did not return the child, who was just 29 months of age. The Petitioner submitted that the respondent did not have time for his family members due to his job as a DM, and also did not have time for babysitting, and lets the little girl roam around the bungalow like an orphan.
- The petitioner also alleged that her daughter has been left with questionable male servants that has led her to feel insecure about the well being of her daughter. It has been claimed that the respondent has been continuing with the custody of the female child in violation of sections 7, 8 and 25 of the Guardians and Wards Act as well as section 6 of the Hindu Minority and Guardianship Act.
- Answering a preliminary question, the HC referred to the decision of the Apex Court in the case of Veena Kapoor vs Varinder Kumar Kapoor (1981) SCC. In this case the petitioner-mother has filed a writ of habeas corpus on the ground that the respondent was in illegal custody of the child. The HC had dismissed the writ petition on the ground that the custody of the child with the respondent cannot be termed as illegal. The Hon’ble Apex Court termed the dismissal of the writ of habeas corpus as ‘on the narrow ground’ and had directed the District Judge to make a report on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the welfare of the minor child.
- Thus, the Patna HC was of the opinion that the writ petition cannot be held to be non-maintainable.
- Coming to the question as to whether the custody of the child below 5 years of age with the father could be termed as illegal, the HC referred to the decision of the Apex Court in Geeta Hariharan vs RBI (1999) SCC where the Court took the view that the word ‘after’ used in section 6 of HAMA does not mean after the lifetime of the father, but includes a condition, inter alia, where the father is deemed absent by virtue of a mutual understanding between the father and the mother.
- The HC further observed that the proviso to section 6a of HAMA carves out an exception to the general rule of custody, but does not render the custody of the child with his/her father as illegal. Section 13 would be a guiding principle in such a situation. It is the welfare of the child which is of paramount consideration and the Courts would be required to apply the legal test, that is, best interest of the child test’.
- The Court also referred to the case of Mousmi Moitra Ganguli vs Jayant Ganguli (2008) SCC wherein it was held that it was the welfare and the interest of the child and not the parents, which would be a guiding factor for deciding the question of custody.
- In light of the facts and circumstances of the case, the petitioner was granted visitation rights to her daughter and the respondent was directed to pay a monthly allowance of Rs.20,000 to the petitioner so that she would be able to visit her daughter.
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