Punjab & Haryana HC Allows 9-Yr-Old To Stay With Maternal Grandmother After Mother Fails To Save Her From Sexual Abuse By Step Father

Ruling that if the custody of either of the parents does not promote the child's welfare, it can be handed over to a third person, the Punjab and Haryana High Court has refused to hand over a 9-year-old girl to her mother, while allowing the maternal grandmother to retain her custody.

In the unique legal battle between the woman and her mother over the minor's custody, Justice Manjari Nehru Kaul said that no doubt the child's mother is her natural guardian, but she cannot merely seek the custody of her daughter on the strength of her legal right.

"If the custody of either of the parents does not promote the welfare of the child, the custody can be refused and a third person, who is eligible and is taking good care of the child, would be entitled to retain his/her custody," said the court.

The observations were made by Justice Manjari Nehru Kaul while hearing a habeas corpus petition filed by the petitioner-mother seeking appointment of a Warrant Officer to search, locate and recover the alleged detenue i.e. her minor daughter from the alleged illegal confinement of the latter's maternal grandmother.

The mother in the case alleged that her minor daughter has been illegally confined by her maternal grandmother on the pretext of providing her good schooling and better care. She being a natural guardian of the alleged detenue has a preferential right to the custody of the alleged detenue, it was argued before the court. The woman alleged that her own mother has "poisoned and brainwashed" the child against her.

Lastly, the petitioner contended that there existed a grave threat to the life and liberty of the alleged detenue and thus, her custody be immediately given to her

The child's maternal grandmother, a retired government employee, in response said that the petitioner had herself given the custody of the minor daughter to her owing to her financial incapacity to pay for the tuition fees and other expenses after her second marriage.

She further submitted that when the minor started living with her, she confided in her that her step-father had sexually abused her on multiple occasions and even threatened her of dire consequences in case she revealed or complained against him to anyone.

She also submitted that when the minor told about the same to her mother, the latter instead of taking any action against her husband, admonished her minor daughter.

The court was also informed that the grandmother had approached the police and the State Human Rights Commission for taking action against the minor's step-father and as a consequence, an FIR was registered this month against him under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012.

In order to arrive at a just adjudication of the matter, Justice Kaul called the minor child to the chamber and during the interaction, the child categorically and in no uncertain words stated that she did not wish to either meet much less stay with her mother.

"The alleged detenue, though came across to be a mature and intelligent child but seemed to be totally shaken," observed the court, adding, "The child seemed to be very traumatized on account of the alleged sexual abuse by her step father. She was very distressed and disturbed while talking about the continuous sexual abuse done on her by her step father."

On a pointed query put to her by the bench as to why she did not want to meet or stay with her mother, she stated that when she brought the alleged instances of sexual abuse to the notice of her mother i.e. the petitioner, the latter admonished her and asked her to keep quiet about it.

The court said that on being further asked if she would wish to meet or talk with her mother, she emphatically replied in the negative. The court also noted that She also seemed very happy and comfortable staying with her maternal grandmother. 

In view of the said factual matrix, the bench observed that in matters pertaining to the custody of a minor child, the paramount consideration has to be the welfare of the child and child alone.

"The expression ‘welfare of the child’ has to be given the widest interpretation so as to ensure the overall well-being and development of the child. The custody of child can be granted only after a satisfaction has been arrived at, by the Court that the same would be in the welfare and in the interest of the minor child," the bench said.

The court said the maternal grandmother is seemingly taking good care of the alleged detenue. It also took note of the submission that an FIR not only stands registered against the petitioner’s husband but he has also been arrested.

"In the present case, the petitioner, even after being apprised of the alleged sexual abuse by her husband, failed to come to the rescue of her minor daughter, i.e. the alleged detenue," said the court.

Not deeming it fit to give the custody of the alleged detenue to the petitioner, the court said that doing so would not be conducive to the physical, psychological and emotional well being of the child, "especially when the alleged detenue has expressed her total disinclination to even meet the petitioner much less accompany her."

"Further, it may also be pertinent to point out here that the custody of the child was handed over to respondent No.4 by the petitioner herself out of her own free will so that the child could attend a good school and be brought up well," the court said, while dismissing the petition.

Advocates Jasneet Kaur & Himani represented the petitioner.

Advocate Kanica Sachdeva, Assistant Advocate General, represented the State of Punjab

Advocate Yoginder Nagpal represented the grandmother.

Case Title: HN Vs State of Punjab & others

Click Here To Read/Download Judgment