Allahabad Excessive Court docket denies little one custody to girl accused in husband’s homicide

The Allahabad High Court recently stated that examining a child’s interests in a custody case and deciding who should have custody is of paramount importance. On this basis, the court decides in whose custody the child is best protected.

The court has therefore refused to hand over custody of the two-year-old daughter to the petitioner, who was accused in the murder of her husband. That order was issued by Judge JJ Munir when he rejected the habeas corpus petition from Mumbai’s Gyanmati Kushwaha.

The petitioner Gyanmati Kushwaha and the late Krishna Kushwaha, son of Suresh Kushwaha, were married according to Hindu rites on November 11, 2011 in Shree Durga Bhavani Seva Mandal, Shivaji Nagar, BMC colony, Bandra East, Mumbai.

This marriage conformed to the wishes of the husband and wife and, it seems, had no origin in the blessings of the couple’s families. Later, Gyanmati Kushwaha and her late husband Krishna Kushwaha appear to have persuaded their respective families to bless the couple, following a marriage that was rightly celebrated again on November 26, 2012.

There is a photocopy of the invitation card relating to this marriage that no one has contested in court. Over time, at the parties, a daughter was born, who was given the name Drisha. She was born on May 28, 2017. It is about her custody that the mother and her grandfather Suresh Kushwaha are involved in an argument.

Gyanmati’s husband Krishna Kushwaha returned to his hometown in Jhansi on May 11, 2018, while Gyanmati stayed in Mumbai.

On May 13, 2018, she received a call from Kamal Kushwaha, her husband’s maternal uncle, that some unknown offenders had killed Krishna. Kamal Kushwaha asked Gyanmati Kushwaha to come to Jhansi with her daughter. She immediately went to Jhansi with Drisha. There she met Kamal Kushwaha. Kamal took Gyanmati to the police station, where she was surprised to know that she was implicated in the murder of her husband, as she said in the case of Kamal, and was arrested.

Gyanmati Kushwaha was taken into custody on May 16, 2018, at which point Kamal tore Drisha away from her. It is said that Drisha had not yet been weaned at the time, but nevertheless Gyanmati was deprived of her daughter’s care and custody in prison. Gyanmati Kushwaha requested bail and was released from prison on September 10, 2018.

After she was released on bail, Gyanmati Kushwaha asked Kamal Kushwaha to return custody of her daughter, but he refused.

Gyanmati Kushwaha filed a motion with the district judge on August 21, 2019 under Section 97 of the Code of Criminal Procedure of 19731, on the case that her daughter was in the illegal detention of Kamal Kushwaha and that the minor could be emancipated from it and handed back to her . No action has been taken on this request.

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Mohini Jaiswal, the petitioner’s attorney, said she was Drisha’s mother and the only surviving natural guardian after the death of her husband Krishna Kushwaha. She is entitled to Drisha’s custody. Jaiswal, on behalf of Gyanmati Kushwaha, argues that the provisions of Section 6 (a) of the Hindu Minority and Guardianship Act of 1956 are of particular relevance.

She stressed that, subject to Section 6 (a), the mother has the right to custody of a minor child normally up to the age of five, which is entirely different from her right to natural guardianship of the minor.

The Court understands that the possibility of conviction may be small or not so small, but the possibility does exist. The existence of it
The possibility and the adverse effects of the event, if it did occur, would far outweigh the temporary benefits the minor would derive from her mother’s care and company.

The fact of the matter, the possibility that the mother might really be a conspirator in the murder of her husband, indicates a personality that would not be beneficial to the minor
Maintaining them about their moral values ​​- a very important aspect of a child’s well-being.

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On the other hand, if the mother is innocent and acquitted, the loss the minor would suffer as a result of her mother’s deprivation of care and custody cannot be redeemed, but it is still a reversal that must be accepted for the safer good of the minor, compared to a better contingent, which is fraught with risks.

It is clarified that in the event of an acquittal due to a doubt or otherwise, the mother has the right to transfer a court of jurisdiction over the custody of her daughter, which is then decided in accordance with the law.

The Court has refused to grant facilities in the child’s best interests.

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