Dependent mother entitled for custody of minor child - HC

30 Nov 2018

Dependent mother also entitles for the custody of the minor child - HC

Indian society is changing and the perception of the people living in the society is also changing day by day which also forcing the judiciary to change the age-old laws which has become redundant and unwanted in this modern society. As we all are aware that recently the Apex Court of the India decided that adultery is no more an offence as the whole law relating to adultery treats the woman as a chattel. Going on the same principle recently in a major break through judgement the High Court of Gujarat in the case of Monaben Ripalbhai Patel vs State of Gujarat & Ripalkumar Mahesbhai Patel while deciding the custody of a minor child under the Hindu Minority and Guardianship Act,  1956 that has upheld that even if the mother of the minor child has no means of earning and dependent on her parents then the custody cannot be denied on such ground.


In order to make you aware about the above stated decision, the factual matrix of the case is explained in brief. The marriage between the contesting parties happened on 24.10.2012 and a male child was born on 12.08.2013. As per the contention of the appellant mother, she had driven out of her matrimonial home on 03.12.2013 without her son and thereafter the appellant and the respondent never stayed together. The aggrieved mother filed a civil miscellaneous application before the Additional District Judge, Gandhinagar for seeking custody of her minor child. However, the judgement of the Additional District Judge did not come in her favour and she was denied the custody, on account of the reason being a non-earning mother and thereby unable to maintain her child.Aggrieved by the order of the Additional District Judge, Gandhinagar the appellant mother decided to file an appeal against the impugned order in the High Court of the Gujarat.


The said matter was decided by Hon’ble Justice Paresh Upadhyay by passing an oral order on 29 August 2018. The Hon’ble Judge discussed the matter at length and heard the contentions of the advocates as well as the respondent and the appellant in person and decided the matter in the favour of the appellant mother thereby granting the custody of the minor child to the mother.


The Hon’ble Court held that the lower court has erred while making the decision and did not follow the legal provisions in its true letter and spirit.The Hon’ble Court also stated the provision of the Section 6 of the Hindu Minority and Guardianship Act, 1956 which states:

Natural guardians of Hindu minor – The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property),are –

(a) in the case of a boy or an unmarried girl – the father,and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate girl – the mother, and after her, the father;

(c) in the case of a married girl – the husband;

Provided that no person shall be entitled to act as a natural guardian of a minor under the provisions of this section –

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)”


The Hon’ble Court stated that the provision of the section 6 of the Hindu Minority and Guardianship Act,1956 clearly states that the custody of the minor child who has not completed the age of the 5 years shall be granted to the mother of the child and which has been clearly disregarded by the lower court while deciding the present suit.The Court further added that the ground of the lower court that the mother of the child herself dependent on her parents and is not earning is not a valid ground thereby denying the custody of her child especially when at the time of making of such order which was on 19 June 2017 the child had not completed even 5 years of age. The Hon’ble Court specifically stated that, “The financial condition of the mother, who is staying alone (may be with her parents) could not be a factor to govern the issue, whether the custody of the minor child, who has not completed even 5 years, should be with home. This court finds that the district court thus fell in serious error by not taking into consideration the relevant provision as noted above and by taking into consideration and an irrelevant factor. This court therefore finds the impugned order is perverse on 2 counts.”


The Hon’ble Court heard the parties and their advocates at length and rejected the argument of the husband that the mother had disowned her less than 4 months old son by leaving her matrimonial home on her own wish. Lastly the Hon’ble court said that by not allowing the mother to have the custody of her few months old and thereby preventing her from breastfeeding her child the damage was already done and thereby the Court has decided to grant the custody of the child to the appellant mother.


While making the above order, the Court has not only ordered the custody of the child in the favour of the appellant mother but also reviewed that the said order must be followed by the parties without further damage especially in relation to that small child as the order relating to transfer of custody sometimes go towards the messy situation. Aggrieved by the judgement of the Hon’ble High Court the respondent husband has decided to file the matter in the Supreme Court, but the Supreme Court confirmed the order of the High Court and thereby the order of the High Court becomes final.


The above judgement has become a major precedence and will go a long way while deciding the petitions relating to granting of the custody of minor child. After reading the above judgement we can say that the Indian Courts have also started recognising the rights of the women which is in tune with the concept of the so-called modern society. The Hon’ble court has not only rejected the argument of the respondent husband but also considered the fact that when a woman is deprived of breastfeeding her child then how much damage her husband or his family has done to that lady. The mother nature has given a boon to woman only to be a creator and made her body to nourish that creation and if somebody disallows her from such right or privilege then that damage cannot be undone in any way.


By Advocate PrakshiAgrawal

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