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Custody of Minor given to maternal Grandmother over father not illegal
Custody of Minor given to maternal Grandmother over father not illegal
A case of child custody is a very difficult decision to make for the court because if custody is given into wrong hands it could destroy a child’s future. In the case of Sudhir Kumar Ghosh & Ors. Versus The State of Madhya Pradesh & others the Madhya Pradesh High court held that if the single judge bench gave the custody of child to maternal grandmother instead of father and father got visitation rights then the decision is not illegal. This case is basically a writ appeal filed before the dual judge bench of Madhya Pradesh high court by Sudhir Kumar Ghosh against a judgement of Single judge bench which gave the custody of his child named ‘Aditi’ to her maternal grandmother with visitation rights given to the petitioner.
The previous judgement against which this appeal has been filed is Aditi Ghosh vs. State of M.P. & Ors. Which was a writ petition filed by the maternal grandmother (Smt. Vimlesh Parmanik) of Aditi against her illegal detention by her paternal grandfather and uncle. Shilpi Parmanik, daughter of Smt. Vimlesh Parmanik was married to Sudhir Kumar Ghosh on 19.02.2013 and the couple were blessed with girl child on 07.03.2014. Shilpi was diagnosed with cancer and she succumbed to her illness on 17.09.2019 at Mumbai after 2 months of the incident Sudhir Kumar Ghosh married to another lady who tortured Aditi, who was only 5 and a half years old. No member of maternal side was allowed to meet Aditi either physically or to talk on call.
It was further submitted that Aditi was sent to Kolkata where she was living with the widowed father and brother of his father who did not held any legal right to keep Aditi. Also at no cost a seven year old girl can live with two adult men with no women in house. From the side of her father it was submitted that writ of habeas corpus is not maintainable because he sent Aditi to her grandfather and uncle living in Kolkata due to the fact that the second wife of Sudhir Kumar Ghosh was 7 month pregnant and she could not take care of Aditi.
The single judge bench observed several facts & evidences which were-
- The minor girl who was held in the lap of her uncle looked scared and she refused to answer the queries of the Court.
- The appellants have tried to show through the photographs that Aditi is happy and celebrated her birthday on 28.02.2021 at Kolkata. However, as it was evident from the birth certificate, her date of birth is 7th March and not 28th February and therefore, it was obvious that these photographs were taken only for the purpose of the writ petition.
- The WhatsApp massage/chat dated 23.06.2020 shows that Amit, maternal uncle of Aditi was constantly asking about Aditi and also requesting to talk to her, which was refused by the father of the child.
- The minor child is a girl of aged about 7 years; unfortunately she has lost her mother, when she was hardly five years of age. The sole surviving parent got remarried, instead of providing support and emotional stability to the child.
After taking into account these facts and evidences of the case the single judge bench also referred to several judgements which laid down precedent for child custody which were
- Tejaswini Gaud and others Vs. Shekhare Jagdish Prasad Tiwari and others[1]
- Nithya Anand Raghavan Vs. State (NCT of Delhi)[2]
- Kamla Devi Vs. State of H.P.[3]
- Govardhanlal Vs. Gajendra Kumar[4]
At the end after analysing the previous judgement, facts & evidences of the case the single judge bench gave the custody of the minor Aditi to her maternal grandmother. It was held that it would not be justified in directing the child to hand over to the father on the basis of uncertain future.
Coming to the writ appeal filed before the Madhya Pradesh High court the court critically analysed the previous judgement passed by the single judge bench of the Madhya Pradesh high court and they do not perceive any illegality in the order passed by the learned Single Judge and the findings ascribed in the impugned order are impeccable and the same do not warrant any interference in the present intra-court appeal.
Accordingly the writ appeal is dismissed and the custody of the minor is held with her maternal grandmother. The court also observed that the judgement of single judge bench is not improper and it can’t be overridden.
“This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On the Authors Personal Views and Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1) (A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, Legal Xpress shall not be responsible for any errors caused due to human error or otherwise.”
[1] (2019) 7 SCC 42
[2] (2017) 8 SCC 454
[3] AIR 1987 HP34
[4] AIR 2002 Raj 148
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