Shimla, June 2 The mother is a natural guardian after the father regarding the custody of minor children, ruled the Himachal Pradesh High Court.
Justice Vivek Singh Thakur passed this order in a petition filed against an order dated November 23, 2022, of the Sub-Divisional Magistrate of Nalagarh, whereby he directed the grandparents to hand over the custody of the minor children to the mother.
The case relates to Priti Devi, who was married to Amar Singh of Bahlam village in Ramshehar tehsil in Solan district.
Due to a matrimonial dispute, Priti Devi and her husband had been residing separately.
On July 17, 2022, Amar Singh committed suicide. Darshan Singh, father of Amar Singh, lodged a police case against Priti Devi, alleging that his son committed suicide due to cruelties by his wife. Resultantly, on July 18, she was arrested and was enlarged on bail on July 27.
During the intervening period, the children remained with their grandparents.
After release on bail, Priti Devi filed an application in the court of Sub-divisional Magistrate (SDM) for custody of her children. The SDM directed the grandparents to handover the custody of minor children to the mother.
The grandparents approached the High Court against the order.
After hearing counsels for the petitioner and the respondent, the court observed that the allegation that the mother abetted the husband to commit suicide is yet to be proved.
Moreover, she has not been declared incompetent or disentitled to have custody of her minor children. Therefore, after the death of the father, the mother is the next person to have guardhip or custody of the minor children.
However, the court has made it clear that right of the mother to have custody of the children is not absolute, but subject to the welfare of the children and, in case in appropriate proceedings, she is found incompetent and or disentitled to have custody of the children or to ensure the welfare of the children, then she will lose right to continue their custody and in such eventuality custody or guardhip of the children.
During the course of the hearing, the bench found that the record or file of proceedings in the SDM court has not been maintained in the proper manner.
"There is no separate order sheet indicating on which date what order was passed by the magistrate. The record has been maintained like a layman. Such practice or affair in keeping and managing records of judicial proceedings requires to be deprecated and improved," the judge observed.
The court directed the Chief Secretary to look into the matter personally and to ensure proper keeping and maintaining of records of judicial proceedings by the officers conducting judicial proceedings.
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