Can't Compel Child To Live With Parent Unacceptable To Him: Kerala HC Allows Child To Stay With Deceased Father's Relatives In Mother's Habeas Plea

The Division Bench comprising Justice Anil K Narendran and Justice G Girish while permitting the child to live with his deceased father's relatives stated thus:

“If it is found that, in a given case, if an order directing the custody of a child with a parent is likely to be detrimental to the interest of that child, especially when the child is of advanced age, and having considerable maturity in mind to decide his future course of action, it is not possible for this Court to pass an order compelling that child to live with such parent who is totally unacceptable to him.”

In the facts of the case, a mother approached the Court seeking her son's custody in a habeas corpus petition. The child was living with his father and was very close to him. After the demise of the father, the child was shifted to Dubai and was residing with the family of his father's sister. The mother alleged that the child was taken to Dubai against the Family Court's order and was in illegal custody.

The Court after interacting with the child stated that he was comfortably living with his aunt and does not wish to live with his mother and her new family. The Court stated that the child and his mother were not in a cordial relationship. It said, “He requested us not to send him along with his mother, and submitted that he may not be able to withstand the atmosphere at the home where his mother is presently residing. We are fully satisfied that the above request made by the detenu is one coming from his heart, and that it cannot be eschewed as his flimsy and childish notions.”

Relying upon Sangeetha v. Commissioner of Police (2002), Sayed Saleemuddin v. Dr.Rukhsana and Other (2001) and Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Another (1987), the Court stated that the welfare of the child should be of paramount consideration in a writ of habeas corpus relating to the custody of children. It referred to the Apex Court judgment in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others (2013) to state that in exceptional cases, the Court would exercise its extraordinary jurisdiction to determine the rights of parties for custody of minor child or direct parties to Civil Court.

The Court stated that the child is not in unlawful custody and rejected the argument of the mother that she has a better chance for custody for providing maternal care. It said, “The contention of the learned counsel for the petitioner in the above regard cannot be accepted for the reason that the detenu, who is having mental maturity far beyond his age, has conveyed to us in unequivocal terms that he will not be able to live along with his mother who often ventured to hurt him by saying bad words about his deceased father with whom he was having deep affectionate bondage.”

Referring to the Madhya Pradesh High Court judgment in Latori Chamar v. State of M.P and Others (2007), the Court stated that a child cannot be denied protection under Article 21 of the Constitution and has the right to live in an acceptable dignified atmosphere. It also stated that a child cannot be permitted to live in an atmosphere alien to him and with a person who would not like to have him. 

The Court stated that in a habeas corpus petition, it was not concerned regarding the personal laws relating to the custody of the child and those issues could be determined by a competent court with appropriate jurisdiction. As such, the Court stated that the child cannot be compelled to live with the petitioner-mother against his wishes. It stated that if the child is compelled to live with his mother against his wishes, it could cause emotional trauma disrupting his life and studies.

It thus said, “The respondents 6 to 8 with whom the detenu is presently living comfortably and peacefully and pursuing his studies in a good manner, shall continue to take care of him unless there is an order from a competent court exercising jurisdiction on minority and guardianship matters, to hand over the custody of that child to the petitioner.”

Accordingly, the Court held that the mother's request for custody of the child cannot be granted in the present habeas corpus petition.

Counsel for Petitioner: Advocates Jacob Sebastian, Winston K.V, Anu Jacob

Counsel for Respondents: Advocates Abhilash K.N., Sunil Nair Palakkat, Rithik S.Anand, Rishi Varma T.R., K.M.Tintu, Anu Paul, Sreelakshmi Menon P., Director General Of Prosecution T A Shaji, Additional Public Prosecutor P Narayanan, Senior Government Pleader Rashmi K M

Citation: 2024 LiveLaw (Ker) 232

Case title: Dr Athulya Asok v The State Police Chief

Case number: WP(CRL.) NO. 163 OF 2024

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