Mother is natural guardian of children: Himachal Pradesh high court

Himachal Pradesh HC held that the mother is a natural guardian after the father in a custody case of minor children, subject to the welfare of the children.

The Himachal Pradesh high court, in a matter pertaining to the custody of minor children, has held that the mother is a natural guardian after the father.

The court said the right of the mother to have custody of children is not absolute but is subject to the welfare of the children.

Justice Vivek Singh Thakur, passed this order, on a petition filed against an order dated November 23, 2022, passed by the Nalagarh sub-divisional magistrate, whereby he directed the grandparents to hand over custody of the minor children to the mother.

The facts of the case are that respondent Priti Devi was married to Amar Singh of Bahlam village in Ramshehar of Solan. Due to quarrels taking place between husband and wife as well as with other members of the family, Priti Devi and her husband Amar Singh had been residing separately at Nalagarh along with their two minor sons.

On July 17, 2022, Amar Singh ended his life. Darshan Singh, father of Amar Singh, lodged an FIR against Priti Devi alleging that his son committed suicide due to cruelties to which he was subjected by his wife Devi. Resultantly, on July 18, 2022, Priti Devi was arrested and, was enlarged on bail on July 27, 2022. During the intervening period, children remained with their grandparents.

The grandparents approached the high court against the order passed by the DDM, Nalagarh. The counsel for petitioners contended that respondent Priti Devi was not having good relations with her husband and she abetted him to commit suicide. As such, the lives of the children will not be safe in the hands of the mother. It has been further canvassed that the mother is having no means to look after and bring up children whereas, the grandfather is an ex-serviceman and is having sufficient landed property therefore, it will be in the interest of the children to keep them with their grandparents.

On the other hand, counsel for the respondent contended that had she been an abettor for the commission of suicide by her husband, then she would have never informed the police and would not have taken him to the hospital with the help of police.

After hearing counsel for the petitioner at length and going through the record of the case, the court observed that the allegation that the mother abetted the father of children to commit suicide, is yet to be proved. Moreover, she has not been declared incompetent or disentitled to have custody of her minor children. Therefore, after the death of the father, the mother is the next person to have guardianship/custody of minor children. However, the court has made it clear that the right of the mother to have custody of children is not absolute but is subject to the welfare of the children and in the case in appropriate proceedings, she is found incompetent and/or disentitled to have custody of the children or to ensure the welfare of the children, then she will lose the right to continue their custody and in such eventuality custody/guardianship of children.

During the course of the hearing, the court found that the record/file of proceedings in the court of magistrate has not been maintained properly. There is no separate order sheet indicating on which date what order was passed by the magistrate. The record has been maintained like a layman. Such practice or affair in keeping and managing records of judicial proceedings requires to be deprecated and improved.

The court directed the chief secretary to look into the matter and ensure proper keeping and maintaining of records of judicial proceedings by the officers conducting judicial proceedings. The chief secretary has been further directed, if required, to take necessary steps to conduct training of officers and/or officials of the state dealing with judicial work/files in the HP State Judicial Academy.