Mumbai: The Bombay High Court has held that a father cannot take away custody of a minor child from the mother if the latter has separated from him.
The claim of the father in such a case that he was a lawful guardian of the child would be naturally partly correct. However, the mother is equally lawful guardian as in the absence of father she becomes the lawful guardian of the child, said Justice Roshan Dalvi in a recent judgement.
Observing that such lawful guardianship cannot be interfered with except by the order of a competent court, the judge recently ordered Lalitkumar Yadav to hand over the custody of his minor son Devarshi to his wife.
The court clarified that if Yadav does not obey this order, it would be held as contempt of the order. In the meantime, the judge ordered that the progress record of the child shall be kept in the sealed cover, in the court.
The High Court was hearing a petition filed by Yadav, challenging the order of a Pune Court which had asked him to give the custody of the child to the mother.
After separating from husband, the wife lived with her parents at Vadgaon-Maval near Pune. The father took the child from her lawful custody in 2012 when he was six years` old. The mother was constrained to file an application under Section 21 of Protection of Women from Domestic Violence Act.
The application was rejected on March 7 this year by Judicial Magistrate First Class, who rejected the contention of the mother that the child was losing his education in the school upon the father having admitted the child to another school, namely Devbhumi Public School.
Despite recording the fact that the main grievance of the mother was that the child losing in education, the Magistrate only considered that the father was the natural guardian of the child and rejected her application.
The mother appealed against the order in Pune sessions court, which considered the intrinsic evidence relating to the residence and the education of the child while ordering that his custody be given to the mother.
The High Court noted, "The child was admitted to Poddar
International School. He received class A and Class A+ in the school. The mother has lodged a missing complaint on December 18, 2012. This shows that the custody of the child was with the mother."
"The fact that the father claimed the custody shows that he took the child from lawful custody himself without the order of the court and the consent of the mother," observed Justice Dalvi of the High Court.
The High Court further observed that the Pune Sessions court judge, in the impugned order, has correctly observed the facts that had transpired from the evidence that was produced which was wholly ignored by the magistrate.
"The impugned order is absolutely correct and shall have to be obeyed. Consequently as per para 3 of the impugned order the petitioner herein, who is the father of the child, is directed to hand over the custody of the minor son Devarshi to his wife," observed Justice Dalvi while dismissing Yadav`s petition.