Custody of Minors: Children's best interests have to be kept in mind, says High Court

Tribune News Service

Saurabh Malik

Chandigarh, May 19

The Punjab and Haryana High Court has asserted that “maternal grandparents” shower love and affection on grandchildren, but a pragmatic approach was required to be adopted to see what was in the best interests of children. The assertion came as Justice Jasgurpreet Singh Puri allowed a habeas corpus petition by a father seeking the custody of minor children taken away by the maternal grandparents after the death of their 33-year-old mother due to dengue.

Justice Puri’s Bench, during the course of the hearing, was told that that couple entered into a love marriage in November 2012. After about eight years, the wife lodged an FIR in September 2020 alleging that the petitioner had “treated her with cruelty”. Some allegations regarding demand of dowry were also levelled.

The matter was sorted out and they continued to live together despite the FIR.

The wife, diagnosed with dengue, passed away on November 3, 2021. Senior advocate Vinod Ghai with counsel Edward George Masih and JS Mehndiratta submitted that the petitioner attended to his wife and took her to a well-reputed hospital at Mohali three-four times, where she was given proper treatment. But her father got a DDR lodged against the petitioner alleging that his wife was being harassed for dowry demand. The children, taken by the grandparents after giving an undertaking to return them after 15 days, were, however, not sent back.

Justice Puri asserted: “The measuring rod for determining a child’s custody, especially of a nascent age, has various parameters, including the relationship of the child with the person seeking custody, the financial status of the party and the overall circumstances as to who should be considered best in the interests of the child for taking custody”.

Justice Puri added that it became a constitutional court’s duty to adhere to the principle of “parens patriae”, was originated in the United Kingdom in the 13th century. It implied that the king was the nation’s guardian and under duty to look after the interests of its subjects. As such, the courts were to ascertain the best person for giving the custody notwithstanding any other factor, including the relationship between the parties since the dominant factor was ultimately the child’s welfare.

Justice Puri added that admittedly there was a matrimonial dispute, but actually the children had now become the victim of the dispute. Their future was to be seen by the court vis-à-vis the place where they could get better education and prosper.

The children were studying at Vivek High School, which was a good school. “It cannot be said that the ‘maternal grandparents’ cannot shower love and affection on the grandchildren. At the same time, a pragmatic approach has to be adopted to see as to what will be in the best interests of the children and where they will have good education and they can be well protected for their overall growth and development. While staying with the father, the children will also have love and affection of their ‘paternal grandparents’...,” Justice Puri observed.

Habeas corpus plea

The assertion came as Justice Jasgurpreet Singh Puri allowed a habeas corpus plea by a father seeking the custody of minor kids taken away by the maternal grandparents after the death of their mother due to dengue.

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