Punjab & Haryana High Court Refuses Interim Custody To Biological Mother Who Prima Facie Abandoned Her Child

While denying interim custody of a minor child to his biological mother, the Punjab and Haryana High Court has observed that biological parents are disentitled to grant of custody if they abandon their minor child and deprive child from love and affection.

A bench of Justice Sureshwar Thakur was dealing with a petition moved by the biological mother of the minor child, seeking grant of custody.

"If evidence prima facie surges forth but demonstrative qua the minor child becoming abandoned or becoming deprived of love and affection, by his biological parents, and, or obviously, upon, interactions being made by the Court with the minor child, he reveals his unwillingness to join the company of his bilogical parents, rather expresses his desire to stay in the company of those persons, who on his purported abandonment have assumed custody over him," it observed.

In this case, the biological mother allegedly abandoned the child after she solemnized her second marriage post the divorce from her first husband. A couple named Manju Singla and Bhim Singla (co-respondents) were then stated to have taken the child in their own custody through one Anupam Muni, petitioner's Guru. The petitioner is said to have handed over the child's custody to Muni, through a written agreement.

While denying the contents of the agreement with Muni, the petitioner contended that the said document is forged. She further contended that she is the biological mother of the child and therefore was entitled to restoration of the custody of her biological child from the co-respondents. She further contended that she alone can impart parental love and affection to him, which are imperative for the grooming of his personality.

The Co-respondents contended that since they were also disciples of Muni, and, since the petitioner, had surrendered the minor child to him, thus, when there was none to take care of the minor child besides when the health of the minor child was frail, they took the custody of the minor child and has been giving him the best medical care and schooling ever since.

It must be pointed out that in an earlier order, the court had directed the Assistant Commissioner of Police to recover the son of the petitioner and produce him before the court and file a status report.

When the child was recovered and produced before the court with a status report, the court had noted in its order that, “The Officer has informed the Court that he has made a preliminary enquiry and interacted with the child, who has told him that he wants to stay with Mr. Bhim Sain Singla from where he was recovered.

In order to satisfy myself, I have personally interacted with the child. The child comes across as very confident for his age. He has expressed a desire to stay with Mr. Bhim Sain Singla and his wife, whom he calls as his parents…Considering the wish of the child and the fact that the welfare of the child is of paramount consideration, his custody is ordered to be handed back to Mr. Bhim Sain Singla, subject to further orders of this Court.”

While referring to the interim order, Justice Thakur noted, “A reading of the above extracted orders, does reveal, that this Court had made references to the … happiness and the best care givings to the minor child besides its ascertaining the wish of the minor child.”

The issue before the court now was whether the order granting interim custody to the co-respondents be confirmed and permanent custody be granted to the co-respondents.

The court noted that ever since the interim order was passed until now, there was no material on record to show that there was any dereliction of duty on the part of the co-respondents. The court further noted that there was also no material on record to suggest that the minor child had expressed his unwillingness to continue to stay in the company of the co-respondents.

The court then referred to the report of the Child Welfare Committee which had noted as follows:

“According to child Santosh @ Archit, he has given all satisfactory replies about his present mother Manju Singla and father Bhim Singla. While behaving very polity with the child, he has been asked about the upbringing, behavior and education being provided by his present parents. At that, the child expressed his satisfaction towards them. Further, the child was expressing his full affection and happiness towards his parents. The child had completely forgotten his past time. Child Santosh @ Archit was willing to live with his present family.”

“the report does make expressions therein, that the minor child was happily residing in the company of co-respondents No.5 and 6. Thus, may be the said extracted contents, do support the handing over the temporary custody of minor child to co-respondents No. 5 and 6, and, also does support the hereafter drawn conclusion that the said handing over of the temporary custody of the minor child is but to be confirmed,” the court noted while referring to the report of the Child Welfare Committee

While referring to the judgment of the Apex Court in Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others (SC) : SLP (Crl.) No. 1675 of 2019, the court said, “The reason for making the above conclusion, is firmly rooted in the factum, that in verdict, clear underlinings have been made, that the welfare and upkeep, and, the necessity of purveying the best care givings, to the minor child are but the imperative or paramount consideration, for determining the rival contestants claim, for theirs' assuming either the interim or the ultimate custody of the minor child.”

On the aspect of granting custody to biological parents, the court again referred to the above judgment of the apex court and noted, “unless there is proof that the biological parents, had abandoned the child or had deprived the child of his right, to love and affection, thereupon, the biological parents of the minor child cannot be deprived of the custody of the said child.”

While referring to the facts and circumstances of the present case, and specifically the fact that the biological mother ie the petitioner, had abandoned the minor child in question when her second marriage was solemnized, the court held, “Thus, in that situation may be, the biological parents becoming not entitled to receive the interim custody of the minor child.”

“Resultantly, at this stage, prima facie, the petitioner is not entitled to the interim custody of the minor child…Thus, when the wish and aspirations of the child, is but, the paramount consideration for determining the issue of the custody of the minor child, thereupon the said expressed aspiration(s) is but to be revered. Preeminently when the said paramount consideration, may countervail the claim of the biological parent to assume the temporary custody over the minor child,” the court held while dismissing the petition moved by the petitioner and granting custody of the child to the co-respondents.

Case Title: Manisha Maheshwari vs State of Haryana and Ors. CRWP-822-2021 (O & M)

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