The Punjab and Haryana High Court on Monday ordered the father to hand over the custody of minor child to mother within one week. The court also observed recording of private spousal conversation without the knowledge of the other is an infringement of privacy and can hardly be appreciated. This was the observation by high court while deciding habeas corpus regarding custody of a child.
Both the husband and wife are IT professionals and are employed at a software company. They had got married in 2012. In November 2019, they separated and the husband took the child with him on the pretext of getting her treated for a congenital ailment and promised to come back soon. He then started living with his parents.
In December 2019, he filed a case under the Guardianship and Wards Act, 1890 for legal custody of the child. The wife subsequently filed a habeas corpus before Punjab & Haryana High Court alleging that her 4-year-old daughter has been taken away by her husband in a clandestine manner.
In the high court, the man argued against HC’s interference in habeas corpus jurisdiction and submitted that the matter is already pending before a Guardian or Civil Judge.
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Observing that it is a settled position in law that a writ of habeas corpus is maintainable to ensure the safety, security, welfare and happiness of a minor child, Justice Arun Monga, in the verdict said,
Merely because other remedies are available would not render the case as not maintainable. After all, every child is a national asset. It is the bounden duty of court also to watch and ensure the welfare and interest of a child in trouble, that best suits for his/her upbringing. Not to say, that parental love and affection, their rights and duties vis a vis their child are to be undermined, in any manner. Court is only to supplement, after weighing all the pros and cons.
Who Will Look After Child Since Both Parents Are Working?
The court, during the hearing, asked both the husband and wife that who takes care of the child in their absence as they both are working at home or outside. The child’s father responded that his paternal aunt, who lives nearby, visits frequently to look after her. The mother responded that she has taken permission from the employer to work from home and she has also asked her parents to live with her.
Observing that the child not only requires constant medical care but special attention too, the court noted that it is only the paternal grandfather and the father who live with her at the parental house. The order read,
She (mother) along with them (parents) would be in a better position to look after the daughter full time, while there is no female attendant at the house of the father.
Custody Of Child Below Five Years
The court also ruled that since the minor daughter is less than five years old, the mother would be entitled to the benefit of section 6 of the 1890 Act and opined that until the prayer of the parties regarding custody of the minor child is decided by the Guardian court, the welfare and interest of the minor would be better in the hands of the mother. However, the court also gave the father a liberty to file a fresh application for temporary or interim custody keeping in view the paramount interest of the child. It added,
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Said motherhood right, in fact, is essentially more for the benefit and welfare of the minor child. Spirit of section 6 hypothesis is that, given the tender age of a minor, suitability of custody is not the predominant factor, what is more relevant or should weigh, is the requisite biological and natural environment, which gives rise to a general presumption that mother is first and best suitable for child care of a minor that age.
Directing the father to hand over the custody of the minor child by coming Tuesday at the residence of her mother, the court also ordered that the father will be provided access to the child between 6pm and 8pm on every Saturday and Sunday and asked the wife to ensure that he is properly treated and allowed to meet the daughter. He has also been asked to continue to provide for the child’s medical care.
As per the verdict, the father can take the child for the medical care purposes and then drop her back with his mother. The mother has also been given liberty to seek help of police for restoration of custody of the minor child.
Referring to a recorded manuscript of a telephonic conversation presented by the husband to show his wife’s alleged misconduct, Justice Monga said,
Such an undercover conduct of husband to record private spousal conversation without knowledge of the other is an infringement of privacy and can hardly be appreciated…
It is rather unfair that he, who would otherwise claim to be a law abiding citizen and interested not to deprive her minor daughter of the special care and attention, which she so deserves, would deprive the child of her mother by indulging in such guileful means so as to record conversation arising out of matrimonial discord.
Our Take :
- Separated fathers have been merely reduced to Santa Claus by the law of our land
- While every judgement is highly subjective in nature, in most of the cases, it is only the mother who is allowed full custody of the minor child
- In the above case, the court believes mother is better equipped to take care of the girl child, however, despite her being a working women, dumps the responsibility of bearing medical expenses only on the father
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- Gender equality is a farce and when it comes to implementing the same in reality, courts look the other way
- Surely, a child may need her mother biologically more in early growth stages, however, how fair it is to allow a father a mere two-hour window over the weekend?
- Does our courts honestly feel there can ever be a normal bond between the father and the child with such limited access under the watch of a separated mother?
- Why do we make monsters of men who are going through divorce?
- The court also feels recording wife’s telephonic conversation is not fair, yet in reverse cases wherein women have hacked husband’s bank accounts, IT documents and other financial records, the same have been perfectly accepted by several family and high courts across India
- Also, most corporates are extremely biased when it comes to permitting any exceptions for working dads
- A working mother can get work from home access easily, however, the man is always expected to fulfil his job obligations even if he wants to nurture his child
- Divorce system and related matters such as child custody are most unfair to men in India and barely give them any opportunity under any law to get a balanced judgement
- All they are expected to do is keep paying for the welfare of the child — a child who is over a period of time brainwashed by disgruntled mother against his/her own father
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