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The Allahabad high court recently held that a man who is accused of killing his wife will not be granted custody of his children. The decision was taken by a single bench of Justice JJ Munir who refused to grant any visitation rights to the father of meeting his minor children.
The husband prayed that a direction is issued by the court to the respondent (grandmother of the minor) to grant him the custody of his children and produce them before the court. Poonam Gautam, the wife and the mother of the two minors died an unnatural death of which the husband has been accused of tampering and subsequent destruction of the evidence. He along with four other members of the family has been booked under sections 147, 302, 201 of the Indian Penal Code, 1860. The arguments put forth before the court were that the children were taken by their grandmother as soon as the father was arrested. After he was released on bail, a request was made thereby granting him the custody of his children. The children were sent to an ashram and the ashram refused to provide him his children. The grandmother further alleged that the husband is a killer and shall not be granted the custody of his children as he could be a threat to them as well.
The court observed that as per law, the natural guardian of the children is their father. However, the custody claim is less important than the welfare of the children. The court said, "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 the welfare of the child cannot be mechanically determined. t is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best." The court further relied on the apex court judgment in the case of Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413 and held that he shall not be given the custody of the children at least as long as he is facing criminal charges.
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