The fact of the Case
In the Matter Lajwanti v. Priti Devi a petition under Section 482 of the Code of Criminal Procedure, 1973, filed in opposition to the decision of the Sub-Divisional Magistrate, Nalagarh, which determined that the mother of the respondent, who was the minor sons’ legal guardian, was entitled to custody. Due to recurrent arguments, the mother of the petitioner’s son’s two minor children, who were married, resided apart from their family. The children’s mother was the subject of a filed police report after the children’s father committed suicide. After being detained, the mother was freed on bond. She requested the children’s production and custody under Section 98 of the Criminal Procedure Code, but her request was denied. The order was annulled by the Magistrate when a revision petition was submitted. A production warrant was issued on November 24, 2022, for the petitioner’s grandparents to turn up custody of the children as per the ruling of November 23, 2022.
Analysis of Court Decision
Justice Vivek Singh Thakur of the Himachal Pradesh high court’s Single Judge Bench rejected the plea and gave the mother of the two small children custody of them.
The mother was not judged incompetent or ineligible to take care of her little children, the court said. The Court cited Section 6 of the Hindu Minority and Guardianship Act, 1956, and stated that the proviso provided that custody of a minor who has not reached the age of five years shall typically be with the mother. In the case of a boy, the Court stated that the mother is the natural guardian after the father. The mother will thus be the next person to have guardianship custody of her young children, according to the court, following the death of the father.
According to the court, a mother’s right to custody of her children is conditional on their welfare rather than absolute. The mother of the minor children would lose her right to continue having custody of them if it were determined that she was incompetent, disqualified from doing so, or failed to ensure their welfare. In such a case, the children’s custody or guardianship would be given to their grandparents or any other competent person.
CASE NAME – Lajwanti v. Priti Devi, Cr. M.M.O No. 1164/22