Allahabad High Court Refused to Grant the Custody of Two Minor Children to Their Father

The Allahabad High Court refused to grant the custody of two minor children to their father, who is accused of killing his wife. The Court also refused to grant visitation rights to the accused father to meet the children.

Poonam Gautam, the wife of accused and the mother of minors, died an unnatural death, regarding which, Awadhesh Gautam (Father/Accused) and four of his family have been booked for her murder and for the destruction of the evidence. An FIR was registered against them under Sec 147, 302, 201 of the IPC.

Brief facts of the case

  • Awadhesh Gautam (Father/Accused) instituted a petition for a writ of habeas corpus, on behalf of his two minor children – Shaurya Gautam and Km. Dishi Gautam.
  • He prayed that a writ, order or direction in the nature of habeas corpus may be issued by the Court, ordering Smt. Brahma Devi Tiwari, respondent no. 4 and Sri Braddhanand Bal Ashram, Arya Samaj Jama Wala, Tilak Road, Dehradoon, Uttarakhand, respondent no. 5, to produce the two minor children-detenues before this Court and upon production, they be ordered to be set at liberty in the manner that the minors be given into the father’s custody.

Observations made by the Court

  • The Court noted that Awadhesh is the minors’ natural guardian under Section 6 (a) of Act,1956, however, the Court noted that “the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare.”
  • If it could be shown, therefore, ex-facie, that the minors’ welfare is best secured in Awadhesh’s hands, this Court would grant immediate custody to the father. Here, however, that does not appear to be the case. The father is an accused. The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best,” it added.
  • The Court relied on the verdict of the Supreme Court, in the case of Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413, wherein it was held that the fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, is an important consideration while determining the question of the welfare of the minor. In this case, the father was accused in a case relating to his wife’s dowry death had claimed the minor’s custody from his maternal grandfather and grandmother. The involvement of the father in a case relating to his wife’s dowry death was regarded by the Top Court as an important factor to be carefully addressed by the Court in reference to its facts and evidence.
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  • Crucially, when the Court interacted with the 10-year-old Minor Shaurya, he said that he does not wish to go back to his father or stay with him. On being asked the reason, he said that he fears for his life. He also said that he wishes to stay at the hostel and insisted upon staying there and refused to go back to his father. In this background, the Court ruled, “the totality of the circumstances on record show that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody.”
  • Finally, the Court observed, “In the overall circumstances of the case, this Court does not think that Awadhesh Gautam is entitled to the minor’s custody, at least at this stage, when he is facing criminal chargesIf and when he is acquitted and the children, still minors, it would be open to him to make an appropriate application, seeking their custody to the court of competent jurisdiction, under the Act, 1890, which shall be decided in accordance with law, according to the circumstances then obtaining, without being influenced by anything said here.”
  • In the result, Allahabad High Court refused to grant the custody of two minor children to their father and the petition failed and stood dismissed.

Case Name- Shaurya Gautam (Minor) And Another v. State Of U.P. And 4 Others

 Citation: Habeas Corpus Writ Petition No. – 140 of 2020

Coram: Hon’ble J.J. Munir,J.

 Allahabad High Court refused to grant the custody of two minor children to their father.

Also Read: Default Bail Under Section 167(2) CrPC Can’t Be Denied To An Accused Merely Because He Filed Application Under Section 439

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