'Character Is Relevant': Allahabad HC Grants Child Custody to Mother As Father Is Facing Rape Charges

The Court issued a writ of habeas corpus in a petition filed by the mother of the detenue, a child aged about 3 years and 7 months. The mother sought the recovery and production of the detenue from the custody of opposite party No.4.

A Bench of Justice Karunesh Singh Pawar held, “The opposite party No.4 has admitted that he is facing rape charges. While deciding the writ of habeas corpus, this Court is not adjudicating the rights of either of the parties. The undisputed fact that opposite party No.4 is facing rape charge is required to be considered by this Court as it questions the very character of opposite party No.4 in Nil Ratan Kundu and another versus Abhijit Kundu reported in [(2008) 9 SCC 413]. It was held that character of the proposed guardian is required to be considered to determine the suitability of the spouse to have custody of the minor child.”

Advocate Gibran Akhtar Khan appeared for the Petitioners.

The Court noted that on the last date of the hearing, respondent No.4 did not appear, leading to a stop order, allowing the court to decide the matter finally. It was further noted that the mother had left due to the alleged atrocities by opposite party No.4 but returned later. The detenue, was allegedly detained by opposite party No.4.

The court had granted visiting rights to the mother through an interim order. She claimed that these visiting rights were not consistently complied with. Opposite party No.4 admitted facing rape charges.

The Court considered the character of opposite party No.4, emphasizing the relevance of pending criminal charges in determining custody.

The Court referred to the case of Nil Ratan Kundu vs. Abhijit Kundu, emphasizing that character assessment of the proposed guardian was crucial in such cases.

Considering the welfare of the minor child and the heinous nature of the charges against opposite party No.4, the Court granted custody of the detenue to the mother. The Court added, “The primary consideration for this Court is to protect and watch for the right of the minor child which has approached this Court. The ultimate well being and welfare of the child as well as future prospect of the child have to be borne in mind while adjudicating this jurisdiction. This Court is not concerned with the right of the respective parties such as compromise/divorce etc. in these proceedings.”

The Court clarified that it did not adjudicate the rights of the parties but issued the order to safeguard the welfare of the detenue. The Court said, “Thus, keeping in view the law laid down by the Supreme Court in the case of Nil Ratan Kundu (supra) the fact that deponent is facing trial for the heinous offence committed upon the minor and considering the tender age of the detenue, in peculiar facts of this case, this Court is of the view that custody of the detenue should be given to the deponent-Rehana.”

The Court added, “The deponent of the petition is none other than the mother of the detenue, aged about 3 years and 7 months old. According to the Mohammedan Law, mother is entitled to custody (hizanat) of a male child until he completes the age of 7 years.”

Parties were allowed to approach the competent court for the adjudication of their rights regarding the custody of the detenue.

Cause Title: Takbeer Khan (Minor)Thru. His Mother Rehana v. State Of U.P. & Ors., [2023:AHC-LKO:81491]

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