LexGAURAV NAGPAL versus SUMEDHA NAGPAL
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 16 S.C.R. 396
A
GAURAV NAGPAL
II.
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SUMEDHA NAGPAL
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(Civil Appeal No.5099 of 2007 etc.)
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NOVEMBER 19, 2008
[DR. ARIJIT PASAYAT AND G.S. SINGHVI, JJ.]
_J-
Hindu Minority and Guardianship Act, 1956 I Guardians
c and Wards Act, 1890 -
ss. 6 and 131 ss. 8, 17 and 25 -
Custody of minor child - Criteria for consideration of - Held:
For determining as to who should be given custody of the
minor child, paramount consideration is welfare of the child
and not rights of parents under a statute - Word 'welfare'
D
used in s. 13 has to be construed literally and to be taken in
widest sense - Apart from physical welfare, Court should
take into consideration moral and ethical welfare of the child
as well - Grant of custody of the minor child in the instant
case by courts below is justified - Long stay of the child with
the father is no ground to deny custody to the mother, as the
E father retained the custody by flouting various orders of the
Court - However, terms of visitation rights of father modified
- Hindu Marriage Act, 1955 - s. 26.
Contempt of Court - Right to visit the child granted to
F mother by Court- Violation of the order by father-, Conviction
for contempt of Court by court below - Held: Conviction needs
·--r-
no interference -
However sentence restricted to period
already undergone.
G
Respondent-mother filed an application u/s 6 of
Hindu Minority and Guardianship Act, 1956 seeking
custody of .her minor child, who was_ in the custody of the
appellant-father. According to the respondent, appellant
t
snatched the child from her custody and she was also
kept in illegal confinement. She filed police complaints
H
396
GAURAV NAGPAL v. SUMEDHA NAGPAL
397
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alleging her wrongful confinement and kidnapping of the
A
child. She had filed application before Magistrate as well
as filed Habeas Corpus petition, wherein the respective
Courts had directed the appellant to produce the child.
Despite that, appellant did not produce the child.
Eventually the application and the petition were
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dismissed by the respective Courts. Her Special Leav~
T
Petition as well as petition under Article 32 of th~
Constitution were dismissed by this Court directing her
to file a petition u/s. 6 of Hindu Minority and GuardianshiJ>
Act, 1956 and s. 25 of Guardians and Wards Act, 1890. c
The petition u/s. 6 of 1956 Act and s. 25 of 1890 Act, was
opposed by the appellant, alleging that the respondent
had abandoned the child. Respondent also sought
interim custody which was rejected by trial court. In
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Revision against denial of interim custody, High Court D
continued the interim custody with the appellant, but
granted visitation rights to the respondent. Respondent
"'J.
then filed contempt petition against the appellant for
flouting of visitation rights. High Court found him guilty
of contempt of court. Ultimately, trial court granted
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custody of the child to the respondent. In appeal High
Court stayed the order of custody but continued the
visitation rights of respondent. High Court eventually
dismissed the appeal. Appeal against order of conviction
for contempt of court was also dismissed. Hence the
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present appeals.
r-~
Appellant contended that there was no reason to
give custody of the child to the respondent as he did not
suffer any disability in his role as a father; that u/s 6 of .
1956 Act, father is the natural guardian of a minor child; .G
that he is able to provide good education to the child
-4-
having good financial means which the respondent did
"
not have; that taking the child out of the custody of father
would cause problems as the child was living with him
since long.
H
398
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A
Dismissing the appeals, the Court
.f-~.
HELD: 1.1. In determining the question as to who
should be given custody of a minor child, the paramount
consideration is the 'welfare of the child' and not rights
8 of the parents under a statute for the time being in force.
[Para 35] [417-G]
1.2. Ordinarily, the basis for issuance of a writ of
habeas corpus is an illegal detention; but in the case of
such a writ sued out for the detention of a child, the law
C is concerned not so much with the illegality of the
detention as with the welfare of the child. [Para 27] [413-
H; 414-A]
1.3. Simply because the father loves his children and
o is not shown to be otherwise undesirable does not
necessarily :ead to thExcerpt shown. Read the full judgment & AI analysis in Lexace.