| Chandigarh |
Published: June 2, 2020 10:16:13 am
Recording of private spousal conversation without the knowledge of the other is an infringement of privacy and can hardly be appreciated, the Punjab and Haryana High Court Monday said while deciding a habeas corpus regarding custody of a child.
While referring to a recorded manuscript of a telephonic conversation presented by the husband to show his wife’s alleged misconduct, Justice Arun Monga said, “Such an undercover conduct of husband to record private spousal conversation without knowledge of the other is an infringement of privacy and can hardly be appreciated…It is rather unfair that he, who would otherwise claim to be a law abiding citizen and interested not to deprive her minor daughter of the special care and attention, which she so deserves, would deprive the child of her mother by indulging in such guileful means so as to record conversation arising out of matrimonial discord”.
A woman had filed a habeas corpus before the HC alleging that her 4-year-old daughter has been taken away by her husband in a clandestine manner. Both the husband and wife are IT professionals and are employed at a software company. They had got married in 2012. In November 2019, they separated and the husband took the child with him on the pretext of getting her treated for a congenital ailment and promised to come back soon. He started living with his parents. In December 2019, he filed a case under the Guardianship and Wards Act, 1890 for legal custody of the child. In the high court, he argued against HC’s interference in habeas corpus jurisdiction and submitted that the matter is already pending before a Guardian or Civil Judge.
Observing that it is a settled position in law that a writ of habeas corpus is maintainable to ensure the safety, security, welfare and happiness of a minor child, the HC, in the verdict, said merely because other remedies are available would not render the case as not maintainable. “After all, every child is a national asset. It is the bounden duty of court also to watch and ensure the welfare and interest of a child in trouble, that best suits for his/her upbringing. Not to say, that parental love and affection, their rights and duties vis a vis their child are to be undermined, in any manner. Court is only to supplement, after weighing all the pros and cons,” it added.
The court, during the hearing, asked both the husband and wife that who takes care of the child in their absence as they both are working at home or outside. The child’s father responded that his paternal aunt, who lives nearby, visits frequently to look after her. The mother responded that she has taken permission from the employer to work from home and she has also asked her parents to live with her.
Observing that the child not only requires constant medical care but special attention too, the court noted that it is only the paternal grandfather and the father who live with her at the parental house. “She (mother) along with them (parents) would be in a better position to look after the daughter full time, while there is no female attendant at the house of the father,” the order reads.
The court also ruled that since the minor daughter is less than five years old, the mother would be entitled to the benefit of section 6 of the 1890 Act and opined that until the prayer of the parties regarding custody of the minor child is decided by the Guardian court, the welfare and interest of the minor would be better in the hands of the mother. However, the court also gave the father a liberty to file a fresh application for temporary or interim custody keeping in view the paramount interest of the child.
“Said motherhood right, in fact, is essentially more for the benefit and welfare of the minor child. Spirit of section 6 hypothesis is that, given the tender age of a minor, suitability of custody is not the predominant factor, what is more relevant or should weigh, is the requisite biological and natural environment, which gives rise to a general presumption that mother is first and best suitable for child care of a minor that age,” it added.
Directing the father to hand over the custody of the minor child Tuesday evening at the residence of her mother, the court also ordered that the father will be provided access to the child between 6pm and 8pm on every Saturday and Sunday and asked the wife to ensure that he is properly treated and allowed to meet the daughter. He has also been asked to continue to provide for the child’s medical care.
As per the verdict, the father can take the child for the medical care purposes and then drop her back with his mother. The mother has also been given liberty to seek help of police for restoration of custody of the minor child.
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