HP HC’s Landmark Decision: ‘Mother As Natural Guardian After Father’

The Himachal Pradesh High Court has recently held that the natural guardian of minor children can be the mother after the father.

Justice Vivek Singh Thakur of the Himachal High Court issued the order in response to a petition challenging the Sub-Divisional Magistrate’s decision from November 23 of the previous year. The Magistrate directed the grandparents to hand over custody of the minor children to the mother.

The case revolves around Preeti Devi from Solan district. Preeti was married to Amar Singh from Bahlam village in Ramshahar tehsil of Solan district. Due to marital discord, Preeti Devi and her husband were living separately.

Tragically, Amar Singh committed suicide on July 17, 2022.

Darshan Singh, Amar Singh’s father, lodged a police complaint against Preeti Devi, accusing her of cruelty towards her husband, which he believed led to his suicide.

Consequently, Preeti was arrested on July 18 but released on bail on July 27. During this period, the minor children stayed with their grandparents.

After her release on bail, Preeti Devi filed an application in the court of the Sub-Divisional Magistrate in Nalagarh seeking custody of her children. In an order dated November 23, 2022, the Sub-Divisional Magistrate directed the grandparents to hand over custody of the minor children to the mother.

Dissatisfied with the order, the grandparents approached the High Court.

After hearing arguments from both the petitioner and the respondent, the court observed that the allegation of the mother abetting her husband’s suicide had not been proven.

Additionally, she had not been declared incompetent or unfit to have custody of her minor children. Therefore, after the father’s demise, the mother becomes next in line for guardianship or custody of the minor children.

However, the court clarified that the mother’s right to custody is not absolute but subject to the welfare of the children. If it is determined through due process that she is incapable of providing proper care or if the welfare of the children is compromised, she may lose the right to retain custody to keep the children with her.

During the hearing, the court noted that the Magistrate’s court had not maintained proper records of the proceedings, including a separate order sheet to indicate the orders passed on specific dates.

As a result, the court directed the Chief Secretary of the State Government to personally oversee the matter and ensure the proper maintenance of judicial records by the officers involved in conducting the proceedings.