Allahabad HC bench of Justice J J Munir in the case of Shaurya Gautam (minor) and another V. State of U.P. And 4 others, refused to grant custody of two minor children to father accused of killing his wife. He also barred him from visitation rights.
The petition stated that Shaurya Gautam and Km. Dishi Gautam, the two minor children were forcibly taken away by their maternal grandmother after the accused was taken to prison in the crime of killing his wife. Awadesh Gautam (father) was given bail on 15/11/19 and after release he went to meet his children. A request was also made to permit him to meet them. He told the court that he came to know that his children have been lodged in Sri Braddhanand Ashram, Uttarakhand. He also said that he produced the documents before ashram to show that he is their father but they refused to release his children.
Grandmother of the children said that she fears for the life of children if custody is given to the father as he already killed his wife. She also told the court that she was given custody by one of relative of Awadhesh in presence of SHO, police station- Sahpau, Dist- Hathras who had the custody after Awadhesh’s arrest.
The court observed that the father is the natural guardian of minors’ under section -6(a) of Act, 1956, but “ 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.”
The HC relied on Supreme Court’s ruling Nil Ratan Kundu and Another V. Abhijit Kundu (2008) 9 SCC 413 where the court 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.
The court lastly said that- “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 the law, according to the circumstances then obtaining, without being influenced by anything said here.” Therefore the court dismissed the petition.