“Biological Mother Regarded As Best To Take Care Of Young Needs Of Minors”: Allahabad HC Transfers Minors’ Custody To Mother From Step-Brother
The Allahabad High Court transferred custody of three minor children from their stepbrother to their biological mother.
The Court observed that a biological mother is best regarded to take care of the young needs of the minors.
The Bench clarified that a lawful guardian was entitled to seek restoration of the custody of a minor child from a kinsman or a relative through a writ of habeas corpus. The Court stated that a writ of habeas corpus was maintainable in matters relating to custody of a child where the child was in the custody of a relative or a person who was not their lawful guardian.
A Single Bench of Justice Saurabh Lavania observed, “This Court finds force in the claim of the…biological mother of the petitioners no. 2 to 4, and also of the view that the biological mother be regarded to be the best to take care of the young needs of the minors and she would secure the welfare of the minors compared to the respondents no. 3 and 4, who are step son and step daughter-inlaw, respectively, of the petitioner no. 1 and, step brother and step sister-in-law, respectively, of the petitioner no. 2 to 4.”
Advocate Swati Bisaria represented the petitioners, while AGA Mohd. Faizan appeared for the respondents.
The biological mother had filed for the custody of her three minor children who were in the custody of their stepbrother and step-sister-in-law (respondents) following the death of their father. The Respondents argued that the mother had left her matrimonial home after the death of their father and left her children in the care of the respondents.
The respondents claimed they had been taking care of the minors' needs since then and therefore challenged the maintainability of the habeas corpus petition filed.
The Court also had to determine whether the person who applied for the writ was the lawful guardian or not, which was an aspect generally determined with reference to the personal laws applicable to parties.
Regarding the maintainability of a habeas corpus petition in cases of custody of minors, the Court answered, “A writ of habeas corpus can certainly be issued in matters relating to custody of a child where the child is in custody of a relative or a person, who is not the lawful guardian, though not an utter stranger. A kinsman or a relative of the child, who holds the child in custody back from the lawful guardian, would entitle the lawful guardian to seek restoration of custody through a writ of habeas corpus.”
“The question, whether the person who applies for the writ is the lawful guardian or not, is generally to be determined with reference to the personal law, applicable to parties. However so, the Court may also inquire into for the purpose of determining the legality of the custody, from which liberation is sought, vis-a-vis the right of the person asking for the writ, the question of welfare of the minor,” the Bench remarked.
Consequently, the Court held that the mother would be granted custody of the three children.
Accordingly, the High Court allowed the petition.
Cause Title: S & Ors. v. State Of U.P. & Ors. (Neutral Citation: 2024:AHC-LKO:43137)
Appearance:
Petitioner: Advocates Swati Bisaria, Azam Shafeequi, Jitendra Singh and Viplav Sahu
Respondent: AGA Mohd. Faizan