Man Accused Of Killing Wife Not Entitled To Custody Of Children Until Competent Court Acquits Him: Allahabad High Court

The Bench of Justice JJ Munir also refused to grant visitation rights to the accused father to meet the children.

Facts of the case

One Awadhesh Gautam (Father/Accused) instituted a petition for a writ of habeas corpus, on behalf of his two minor children - Shaurya Gautam and Km. Dishi Gautam.

He prayed that a direction be issued by the Court, ordering Smt. Brahma Devi Tiwari (respondent no. 4/minors' maternal grandmother) and Sri Braddhanand Bal Ashram, Arya Samaj Jama Wala, Tilak Road, Dehradoon, Uttarakhand (respondent no. 5), to produce his two minor children-detenues before the Court and upon production, their custody be granted to him.

Notably, Awadhesh Gautam's wife and the minors' mother, Poonam Gautam, died an unnatural death, regarding which, Awadhesh Gautam and four others of his family have been booked for her murder and for the destruction of the evidence.

In this connection, an FIR giving rise to Case Crime No. 238 of 2017, under Sections 147, 302, 201 of the Indian Penal Code, 1860 has also been registered against the father-Awadhesh and 4 others.

Arguments put forth

It was alleged in the writ petition that Shaurya Gautam and Km. Dishi Gautam (minor children) were forcibly taken away by respondent no. 4 (minors' maternal grandmother) when Awadhesh Gautam (father) was sent to jail, in connection with the crime.

Awadesh Gautam (father) was admitted to bail by dated 15.11.2019 and upon his release from jail, he approached the fourth respondent. A request was made to permit him to meet the children.

He also asserted that he produced documents before the ashram authorities to show that he was the minors' father, and requested them to hand him over custody of the minor children. It was asserted that the ashram refused to release the children.

She also told the Court that she was given the custody of the minors by one Neeraj Gautam, a relative of Awadhesh (father), in the presence of the Station House Officer, Police Station - Sahpau, District - Hathras, who had the custody of the children after Awadhesh's arrest.

Court's Observations

The Court observed that Awadhesh is the minors' natural guardian under Section 6 (a) of Act, 1956, however, the Court noted that "the issue about the minors' custody is not so much about the right of one who claims it, as it is about the minors' welfare."

Further, the Court also noted,

"If it could be shown, therefore, ex-facie, that the minors' welfare is best secured in Awadhesh's hands, this Court would grant immediate custody to the father. Here, however, that does not appear to be the case. The father is an accused. The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best."

The Court relied on the Apex Court's ruling in the case of Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413, wherein it was held that the fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, is an important consideration while determining the question of the welfare of the minor.

In Nil Ratan Kundu's case, the father, an accused in a case relating to his wife's dowry death had claimed the minor's custody from his maternal grandfather and grandmother.

The father's involvement in a case relating to his wife's dowry death was regarded by the Apex Court as an important factor to be carefully addressed by the Court in reference to its facts and evidence.

Importantly, when the High Court interacted with the 10-year-old Minor Shaurya, he said that he does not wish to go back to his father or stay with him. On being asked the reason, he said that he fears for his life.

He also said that he wishes to stay at the hostel and insisted upon staying their and refused to go back to his father.

In this backdrop, the Court opined,

"The totality of the circumstances on record show that unless acquitted, it would not be appropriate to place the two minor children in their father's custody."

Lastly, the Court said,

"In the overall circumstances of the case, this Court does not think that Awadhesh Gautam is entitled to the minor's custody, at least at this stage, when he is facing criminal charges. If and when he is acquitted and the children, still minors, it would be open to him to make an appropriate application, seeking their custody to the court of competent jurisdiction, under the Act, 1890, which shall be decided in accordance with law, according to the circumstances then obtaining, without being influenced by anything said here."