Mohini Jaiswal, learned counsel for the petitioner submitted before the Court thatshe is Drisha's mother, and the only surviving natural guardian, after her husband Krishna Kushwaha's death. She is entitled to Drisha's custody. It is submitted by Ms. Jaiswal on behalf of Gyanmati Kushwaha that the provisions of Section 6(a) of The Hindu Minority and Guardianship Act, 19562 are of particular relevance. She emphasizes that under the proviso to Section 6(a), the mother has the right to the custody of a minor child until the age of five years ordinarily, which is quite apart of her right to the minor's natural guardianship. It is said that pitted against the minor's father, in cases where the minor is below five years of age, the mother would have a preference in the matter of custody over the father also.It was also submitted that presently Suresh Kushwaha (Drisha's grandfather) is having the custody of the minor daughter and that it is absolutely not in the minor's welfare to entrust her custody to the grandfather, while the mother is around.
“There is no one better than the mother to look after the custody of a child, particularly, a young child,” it has been submitted on behalf of petitioner.Arguments by respondents: Counsel appearing on behalf of respondents have submitted that in this case, the mother would not be entitled to Drisha's custody, because she is an accused in the case relating to her husband's murder, along with co-accused Ajay, who has been dubbed as her paramour, and other associates.
“She is facing trial for her husband's murder, and if convicted, the child's life might be ruined,” it has been submitted.It has also been submitted that the mother's right to a young child's custody would not be applicable here. An issue about territorial jurisdiction has also been raised. Court's observations: In the present case, the Court is deprived of knowing the wishes of the minor, because she is too young to express her intelligent choice. The courts, looking into facts and circumstances of the case, thus observed that:
“The law would not certainly countenance custody of a minor to be handed over to a parent who is an undertrial, in connection with the other’s murder, and that too, on a charge of conspiracy with a paramour.”On the other hand, the court observed that it is the mother's right to her child’s care and custody, and the child’s right, in turn, to her mother's love and affection, which the law takes care of to the extent that if the mother were in jail in an unrelated matter, young children up to the age of five or six years, depending on different jail rules in the various states, are allowed to stay in prison with the incarcerated mother. Further, court said:
“The statutes may speak about the right of one parent or the other to custody, or the right of guardianship, but, in substance, it is not at all about the right of a guardian to the minor’s custody, or guardianship; it is all about the minor’s welfare.”Coming to the facts of the Case, the Court opined that if the mother were to be convicted, the minor's welfare would be thrown into disarray.
“It would be irreversibly unsettling and debilitating in her formative years. It may even expose her to insurmountable trauma, if she witnesses her mother, whom she is bonded with, convicted in the case of her father's murder", remarked the Court.The Court further noted that the possibility that the mother might truly be a conspirator in her husband's murder, predicates a personality that would not be beneficial for the minor in grooming her about her moral values - a very important aspect of a child's welfare.
On the other hand, the Court remarked,
“If the mother is innocent and she is acquitted, the loss, the minor would suffer on account of deprivation of her mother's care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor's surer welfare, in preference to a contingent better, fraught with risk.”The Bench of Justice J. J. Munir, gave the mother the liberty to seek daughter's custody in the event she is acquitted by judgment based on doubt or otherwise.