The Allahabad high court has held that a woman accused of killing her husband cannot be given the custody of her minor daughter considering the welfare of the child, unless she is acquitted in the case.
Justice JJ Munir, while dismissing the petition, observed that if the mother is acquitted in the murder case by the concerned court, she would have the right to move court for her daughter’s custody, which would then be decided in accordance with law. The court passed this order on February 26 in a habeas corpus writ petition filed by a woman in 2019.
In the plea, the woman residing in Mumbai had alleged that on May 11, 2018 her husband went to his native place at Jhansi while she stayed back. On May 13, 2018, she received a call from her husband’s maternal uncle claiming some unknown person had killed her husband. However, when she reached Jhansi with her daughter, she was falsely implicated in her husband’s murder case and was arrested while her daughter was taken away by her husband’s maternal uncle. Since then the child was in his custody.
The court observed, “This court assumes that the possibility of conviction may be remote or not so remote, but the possibility is there. The existence of this possibility and the adverse impact of the event, if it were to come to pass, would far outweigh the transitory benefit the minor would derive from her mother’s care and company.”
“This facet of the matter apart, the possibility that the mother might truly be a conspirator in her husband’s murder, predicates a personality which would not be beneficial for the minor in grooming her about her moral values – a very important aspect of a child’s welfare. On the other hand, if the mother is innocent and is acquitted, the loss, the minor would suffer on account of deprivation of her mother’s care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor’s surer welfare, in preference to a contingent better, fraught with risk,” further observed the bench.
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