FACTS:
NAME OF THE CASE: GAUTAM KUMAR DAS vs. NCT OF DELHI & ORS[1]
CITATION: 2024 0 SUPREME (SC) 671
NAME OF THE APPELLANT(S): GAUTAM KUMAR DAS
NAME OF THE RESPONDENT(S): NATIONAL CAPITAL TERRITORY OF DELHI AND ORS.
DATE OF THE JUDGMENT: 20TH AUGUST, 2024
COURT: SUPREME COURT OF INDIA
NAME OF THE JUDGE: B.R. GAVAI J. AND K.V. VISWANATHAN, J.
ADVOCATE FOR APPELLANT: SHRI SAURAV AGRAWAL
ADVOCATE FOR RESPONDENT: SHRI HIREIN SHARMA
FINAL DECISION: APPEAL ALLOWED
- On 27/01/2012, the appellant Gautam Kumar married to Ms. Subrata Das.
- Master Divyanshu Das the son of them was born on 11/09/2013 and M/s Baby Sugandha Das, the daughter was born on 20/04/2021.
- After 10 days, due to COVID-19 the wife of the appellant lost her life on 30/04/2021.
- On 13/05/2021 the appellant lost his father.
- Due to all these circumstances, the appellant handed over his both the children to the respondent no. 5 who is a sister-in-law of appellant, so there their care is to be taken properly.
- After some time the respondent no. 5 gave the custody of the minor son to the appellant.
- The sister-in-law kept the minor daughter with her as she was young and she need the care of female for few months.
- Then respondent no. 5 refused to meet the appellant to the daughter and took the minor daughter to her maternal home in the Belda, West Bengal and handed over the custody to respondent no. 6.
- The appellant married to other girl to provide care to his children. After the marriage he reached to respondent no. 5 and again he was refused.
- Due to all this, on 7/07/2023 the appellant filed the case under Guardian and Wards Act, 1890 for the custody of the daughter. Along with this he filed 2 complaints, one in Delhi and other in Belda.
- Due to failure, again on 30/01/2024, the appellant filed the Writ Petition before the High Court and withdrew the case of Guardians and Wards Act on 07/02/2024. The High Court referred the matter to the mediation. Referring the order of the mediator, the high court grant the visitation rights to the appellant and disposed the writ petition by ordering parties to approach the family court for this issue.
- Due to this the appellant reached the Supreme Court.
- The Supreme Court order that minor daughter shall remain in Delhi.
- The court considered the facts and viewed that appellant has valid grounds to claim the custody of minor daughter.
- Therefore the Supreme Court of India allowed this appeal of the appellant and gave the custody of the minor daughter to her father who is an appellant here.
ISSUES RAISED:
- Currently who holds the custody of the minor daughter?
- Who has a legal right to custody?
- Is the writ of Habeas Corpus is maintainable for the custody cases?
- Where the welfare of the child will suit better?
CONTENTION:
APPELLANT SIDE:
- Firstly the advocate for the appellant argued that the appellant is the natural guardian of the child and respondent no. 5 and 6 are neither a legal guardian and nor have any legal right or authority over the minor girl. Only appellant and biological father, Gautam Kumar Das, is a natural guardian of the daughter.
- The custody of the daughter is to be given to her father as submitted by the appellant.
- The advocate for the appellant also cited a case by saying that a view taken by the High Court is same as in the case of Tejaswini Gaud and Ors. Shekhar Jagdish Prasad Tiwari and Ors.[2]
- The appellant argued that he married to other girl so he will be able to give her daughter a stable life and loving home.
- They highlighted that residing with her biological father and brother will be in the best interest of the daughter.
- Further the appellant argued that he is financially strong as he is going government job and is able to provide his daughter with a solid childhood.
- By arguing this, he also provided the proofs of the photographs that the new youngster has built a close relationship with the family.
RESPONDENT SIDE:
- The advocate for the respondent no. 5 and 6 argued that the family of the appellant was ill-treating the wife. He also submitted that that appellant has voluntarily handed over the custody of the children to respondent n. 5 and 6.
- They relied on the various judgments such as:
- Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor[3]
- Nirmala v. Kulwant Singh and ors.[4] and
- Ather Hussain v. Syed Sirag Ahmed and ors.[5]
- Respondents, the family members who had been given interim custody, said that their support had been essential throughout the trying time that followed the mother’s passing. Given the necessary emotional and psychological adaptations, they voiced worries about the possible disruption to the child’s life in the event that custody was returned to her father.
- They probably doubted if the father’s recent personal life changes including his remarriage would create a stable environment for the child’s development and questioned the stability of his new family. The child’s bond to the respondents and the potential for distress from being relocated away may have also been mentioned.
RATIONALE:
The court described the facts of the Tejaswini’s case and said interpreted that the facts of this care are same as previous, in the cited case the wife was suffering with the breast cancer and the husband with the disease of Tuberculosis. The husband was undergoing treatment and the wife lost her life. The sister of the wife took a minor child from them for taking care. After some days she denied the custody and the husband reached the High Court with the Writ of Habeas Corpus and the High Court allowed the Writ.
Then court also referred to the case Rosy Jacob v. Jacob A. Chakramakkal.[6] In this case the welfare of the child is dependent on the fitness of the father was discussed. In this case the fitness of the appellant is that, he is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi.
The court described that the welfare of the child is more important. The court also inferred that the welfare of the child will be more secured in the own family of her. The court described the legal right of the appellant as he is a natural father under section-6 of the Guardians and Wards Act.
The court also referred the case in which same petition of Habeas Corpus was used to file the case for the custody of the child.
DEFECTS OF LAW:
Insufficient evidences: The evidences of the ill treatment of wife by the appellant are not provided by the respondent no. 5 and 6.
Delay in transfer of custody: The delay has caused the emotional strain on the mind of the minor daughter and she was not given the love of the father for more time.
Mediation: If there would be a proper mediation then the appellant would not have been moved to the Supreme Court.
Wrong Ground for disposal from High Court: The High Court have made very wrongful ground for the disposal of the Writ Petition.
INFERENCE:
The allegations made by the respondents for ill treatment are not true as they have not provided any evidence related to that. The High Court cannot override the right of the natural guardian.
As Habeas Corpus writ is for the unlawful custody, so this writ is maintainable as there was an unlawful custody of the daughter with the respondent no. 5 and 6. The legal right for the custody a daughter is of the legal guardian and here legal guardian of the minor daughter is her natural father, who is the appellant here.
In my opinion as the custody of the child given to the sister-in-law was only temporarily, so now they cannot deny to return the custody to the appellant as he is the natural guardian and has a legal right over them.
The main point to be considered while determining the custody of a child, is only the fitness of the father, if the father is well fit to maintain the child, then only the custody is to be returned to him. In this case the father is well fit and educated so he was provided with the custody of the child.
Aakanksha Rajdev
Marwadi University
[1] 2024 0 SUPREME (SC) 671
[2] (2019) 7 SCC 42
[3] (1981) 3 SCC 92
[4] 2024 SCC Online 758
[5] (2010) 2 SCC 654
[6] (1973) 1 SCC 840