Question: My child has fallen in love with her tutor. She is a minor and the teacher is a married person. All this has happened due to immaturity of my daughter and instigation from the teacher. When the police recovered she was produced to the Magistrate. The Magistrate has sent her to Nari Niketan. I want her custody but the Magistrate has refused to grant custody of my child from Nari Niketan. What should I do to take custody of my child?
Question from: Rajasthan
You did not mention why the Magistrate has refused to grant custody of your child from Nari Niketan? It is a criminal case. I think you should have lodged an FIR under Section 363, 366 of the Indian Penal Code and Section 3 & 4 of the POCSO Act.
The Magistrate has given your child in the custody of Nari Niketan. There were indeed some valid reasons to do so. The investigating officer would have brought her to the Magistrate for recording of her statement under Section 164 of the code of criminal procedure.
The Magistrate thought, on the perusal of her statement, that Nari Niketen would be a safe place for your child. This might be the reason for refusal of your application for custody of the child.
Each order of the Magistrate has some valid reasons. However, you did not mention anything about the grounds of refusal but I think that your daughter, in the statement under Section 164 crpc, might have refused to go to her home.
Remedy when magistrate has refused to grant custody of child
There are some facts in your favour and they will constitute valid grounds to challenge the order of the Magistrate. Your daughter is a minor girl, she eloped with her tuition master (accused). The tuition master is a married person.
In this situation, it is neither good to keep her in Nari Niketan nor send in the custody of the accused. Therefore, in the interest of justice, the parents of the child should get her custody.
The Magistrate has overlooked these facts and has refused to grant custody of child to her parents. These facts render the current custody illegal. The Nari Niketan is not a proper place of custody for a minor girl if her parents are ready to take her custody.
Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully.R.V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71
A minor girl, however, should not be given in the custody of a married person who has illegally taken her away from the lawful custody of parents. Your daughter has not attained enough maturity to understand the consequences of her act. Therefore, refusal to grant custody of your child from Nari Niketan is illegal. When a person has been in illegal custody the writ of habeas corpus is maintainable.
Welfare of minor to be paramount consideration for deciding minor’s custodyLekha vs. P. Anil Kumar, 2007 (66) ALR 150 (SC)
The High Court, in its writ jurisdiction under Article 226 of the Constitution of India, can quash the order of Magistrate. At the same time, the High Court may order or direct to transfer the custody of the child from the Nari Niketan to her parents. You should file a writ petition to get custody of your child from the Nari Niketan.