Family can't take place of father or mother, rules Punjab and Haryana High Court

Saurabh Malik

Chandigarh, January 3

Family cannot take the place of a father or a mother so far as taking care of a minor is concerned, the Punjab and Haryana High Court has asserted. The assertion came in a matrimonial dispute, where the father contended that his family could take care of the child when he went to work. The Bench also made it clear that the onus was on the father to prove that placing the minor in the mother’s custody was not in the child’s welfare.

Minor’s welfare paramount

In a custody tussle, each case has to be decided on its own peculiar facts and circumstances, but underlying paramount consideration is the welfare of the minor child. Justice Archana Puri, Punjab and Haryana High Court

The judgment is significant as one of the grounds taken in child custody cases is that the family can take care of the minor in a parent’s absence. Justice Archana Puri asserted the petitioner-father was stated to be working in a private sector and stepped out of the house to follow his avocation. As such, he may not be having ample time to look after the minor.

The petitioner’s counsel pointed out that his parents and family, particularly his younger brother’s wife, was there to take care of the minor. “Other family members of the either side cannot take place of a father or mother so far as taking care of the minor child is concerned. The respondent is staying with her parents and she can provide ample time to look after the welfare of the minor child,” Justice Puri added.

The matter was brought to Justice Puri’s notice after a father challenged a family court order dated May 4, 2022, allowing the respondent-mother’s plea for the minor son’s interim custody. Justice Puri asserted each case in a custody tussle was required to be decided on its own peculiar facts and circumstances. But underlying paramount consideration was the minor’s welfare depending on several factors.

Justice Puri added a custody dispute involved human issues, which were always complex and complicated. There could never be a straight jacket formula even to adjudicate the question of interim custody.

Justice Puri observed the parties had raised allegations and counter-allegations regarding each other’s bad behaviour and conduct. The minor, now about 3-year-old, required love, affection and proper care normally expected from a mother.

Justice Puri added Section 6 of the Hindu Minority and Guardianship Act, of seminal importance, stated that the father, and after him the mother, would be the natural guardian of a ‘Hindu’. It provided that the custody of a minor under five would ordinarily be with the mother. The proviso placed the onus upon the father to prove “it was not so in the welfare of the infant child to be placed in the custody of his/her mother”.

Dismissing the plea, Justice Puri among other things added the petitioner’s counsel assiduously submitted that the mother was not suitable to have the custody as she had no love and affection. But such material was not there on record.