The principal consideration to be decided in the writ of Habeas Corpus for custody of minor is whether the custody is illegal or not: Allahabad High Court
The custody of a minor child who has lived with her maternal grandparents since a very tender age is not unlawful or illegal. Such an observation was held by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Yogendra Kumar Srivastava in the case of Reshu @Nitya and ors vs State of UP and ors [HABEAS CORPUS WRIT PETITION No.­ 9 of 2020]. 
The fact of the case was that the mother of the minor died due to cardiac arrest when she was 19 months old and since then she is residing with her maternal grandparents. The contentions of the petitioners were that upon repeated requests the maternal grandparents were not handing over the custody of the minor to her father and paternal grandparents and therefore the respondents are illegally detaining the minor in their custody. However, the contention of the respondents was that the petitioners are responsible for the death of the minor’s mother for which a criminal complaint and an FIR has been lodged under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961 which is sub-judice. 

The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a   material bearing would be the necessity of the child being provided loving and understanding care,   guidance, and a   warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality” 
The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character,   personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.

Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.
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Judgment Reviewed by: Rohan Kumar Thakur
 The fact of the case was that the mother of the minor died due to cardiac arrest when she was 19 months old and since then she is residing with her maternal grandparents. The contentions of the petitioners were that upon repeated requests the maternal grandparents were not handing over the custody of the minor to her father and paternal grandparents and therefore the respondents are illegally detaining the minor in their custody. However, the contention of the respondents was that the petitioners are responsible for the death of the minor’s mother for which a criminal complaint and an FIR has been lodged under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961 which is sub-judice.  
The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a   material bearing would be the necessity of the child being provided loving and understanding care,   guidance, and a   warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality” 
The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character,   personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.

Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.
Click here to read judgment
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a   material bearing would be the necessity of the child being provided loving and understanding care,   guidance, and a   warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality”  The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character,   personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal. 
Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.
Shukla Ramanuj Yadav Virendra Kumar Yadav Counsel for Respondent :­ G.A. Abhinav Gaur Ankur Verma Manoj Kumar Rajvanshi Prakash Chandra Yadav Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri M.D.Mishra along with Sri Ramanuj Yadav learned counsel for the petitioners Sri Vinod Kant learned Additional Advocate General appearing along with Ms. Sushma Soni learned Additional Government learned Senior Counsel assisted by Sri Ankur Verma and 3 seeking custody of the petitioner no. 1 corpus a fact that the petitioner no.1 corpus was born on stated that the mother of the petitioner no. 1 was petitioner nos. 2 and 3 and that the same amounts to respondent no. 4 wherein it is pointed out that the her by the in­laws which resulted in her death and the newly born girl child the petitioner no. 1 is under the care of the respondent no. 4 since the death of her any kind of illegal custody. It is at this stage as reflected from the order­sheet that an application seeking was moved which was allowed on 14.02.2020 and he A supplementary counter affidavit was filed on which ultimately resulted in her death. Particulars of a Prohibition Act 1961 in which the petitioner nos. 2 3 and 4 are named as accused have also been affidavits have been filed on behalf of the petitioners the supplementary counter affidavit respectively and reiterating the claim with regard to custody and Learned counsel for the petitioners has sought to the absence of her mother the petitioner no. 2 her father who is the only surviving parent would be her natural guardian as per Section 6 of the Hindu Minority and Guardianship Act 19561 and accordingly the respondent been placed upon the decisions in Tejaswini Gaud Vs Shekhar Jagdish Prasad Tewari and others2 and Kumari Palak and another Vs. Raj Kumar Controverting the aforesaid assertions learned Senior Counsel appearing for the respondent no. 4 has years and that she is under the care and custody of respondent no. 4 her maternal grand­father ever since 1. HMGA of her mother on account of the torture and cruelty held to be illegal. Pointing out to the fact that the relating to offence of dowry death inflicted upon the the minor child to grant her custody to the said upon the decisions in Neelam Vs. Man Singh4 Smt Vs. Deepak Kisanrao Tekram7 Nil Ratan Kundu and Vs. Pradip Kumar Karunashankar Joshi10 Vaibhavi Sharma and another Vs. State of U.P. and others11 and Vahin Saxena and 6. 2 SCC 654 matter relating to a claim for custody of a child the writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain vs. State of U.P. and others13 and Kanu Sanyal vs. District Magistrate Bench decision in the case of Kanu Sanyal with law. The object of the writ is to secure release of a is no doubt a command addressed to a person who is his detention may be inquired into or to put it differently “in order that appropriate judgment be restraint”. The form of the writ employed is “We command you that you have in the King s Bench primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the and if the detention is found to be unlawful having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and as pointed out by Lord Halsbury L.C. in Cox v. Hakes “the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant s freedom That is the primary purpose of the writ that is its 13. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would therefore be is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant and whether the welfare of the child requires that his present custody should be changed and the child be 15. Taking a similar view in the case of that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other the whether the custody of the child can be said to be requires that the present custody should be changed. It Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy securing the liberty of the subject by affording an as equivalent to illegal detention for the purpose of guardian in appropriate cases the writ court has 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus the child is addressed to the discretion of the court Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case ordinary custody matters the power of the High Court in granting the writ is qualified only in cases where the Courts in our view in child custody matters the writ of the Guardians and Wards Act as the case may be. In and Wards Act the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between of affidavits. Where the court is of the view that a detailed enquiry is required the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas mother the mother having died in child birth it was held and on facts the child having been brought up by the grand­mother since her infancy and having developed to be retained by the maternal grand­mother. While the Court was held to be what would best serve the Vs. Arvand M. Dinshaw18 and Muthuswami Chettiar Vs. K.M.Chinna Muthuswami Moopanar19 it was also held that welfare of child prevails over legal rights of parties while deciding custody of minor child. The “14. The question for our consideration is whether in the present scenario would it be proper to direct the 15. Under the Guardians and Wards Act 1890 the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions the welfare of the question cannot be decided merely based upon the rights of the parties under the law. it was held that ordinarily under the Guardian and Wards Act 189020 the natural guardians of the child have the right to the courts are expected to give paramount consideration to what is the benefit of the child was considered in Re “...The dominant matter for the consideration of the child is not to be measured by money only nor by “It is not I think really in dispute that in all cases the that of course does not mean you add up shillings and whole background of the child s life and the first are looking at his welfare is who are his parents and factors while examining the welfare of a child was considered in Walker Vs. Walker & Harrison23 and it was observed that while material considerations have which are essential for the development of the child s character personality and talents. It was stated as “Welfare is an all­encompassing word. It includes 21. 1 Ch. 143 C.A 23. 1981 New Ze Recent Law 257 material welfare both in the sense of adequacy of are maintained. However while material considerations have their place they are secondary matters. More understanding care and guidance the warm and development of the child s own character personality and a habeas corpus proceeding it has been stated in habeas corpus proceeding for custody of a child is addressed to the discretion of the court and custody may be withheld from the parent where it is made 23. The question of a claim raised by maternal grand­father for guardianship of a minor child whose Deepak Kisanrao Tekham25 and reiterating that in the matter of custody of a minor child paramount or relatives it was held that the appointment of the maternal grand­father as guardian was justified Referring to the judgments in Gaurav Nagpal Vs Sumedha Nagpal26 and Anjali Kapoor Vs. Rajiv Baijal5 “17. In Gaurav Nagpal v. Sumedha Nagpal26 this widest sense. The moral and ethical welfare of the physical well­being. Though the provisions of the nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in the maternal grandfather as ordered by the District 19. We have already referred to the fact that on 23­3­2003 after giving birth to the child the mother died and the child was taken by the maternal grandfather. The maternal grandfather filed a petition for custody on 7­8­2003 and the father also made a another woman and also has a son from his second marriage. Though the exact date of marriage is not mentioned anywhere the fact remains that within a the appellant herein the respondent husband married that the respondent is working as an Operator in and other retiral benefits and also owns agricultural his wife i.e. maternal grandmother of the child and 26. 1 SCC 42 any specific finding by the courts below on either of 22. It is true that under the 1890 Act the father is the Court consistently held that the welfare of the minor child is the paramount consideration and such a rights of the parties under the law. This principle is the respondent father got married within a year after through the second marriage residing in a rural village the child is getting good education we feel that the It may be apposite at this stage to refer to the law relating to guardians and wards which is governed in terms of the Guardian and Wards Act 189020 and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed to guardians and wards. Section 4 of the Act defines “minor” as “a person who has not attained the age of the person of a minor or his property or of both his whose person or property or both there is a guardian” Sections 5 to 19 of the Act relate to appointment and “7. Power of the court to make order as to 3) Where a guardian has been appointed by will or an order under this section appointing or declaring made until the powers of the guardian appointed or Section 8 of the Guardian and Wards Act 1890 guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship Sections 10 to 16 deal with procedure and powers of “17. Matters to be considered by the court in the guardian of a minor the court shall subject to the provisions of this section be guided by what minor the court shall have regard to the age sex and the wishes if any of a deceased parent and any 3) If the minor is old enough to form an intelligent 29. The Hindu Minority and Guardianship Act 19561 who has not completed the age of eighteen years” property” and includes a “natural guardian”. “Natural guardian” means any of the guardians mentioned in Section 6 enacts as to who can be said to be a guardians of a Hindu minor in respect of the minor s person as well as in respect of the minor s property Provided that the custody of a minor who has not 1. HMGA unmarried girl—the mother and after her the father Explanation.—In this section the expressions ‘father’ and ‘mother’ do not include a stepfather and a Section 8 thereof enumerates powers of a natural which are necessary or reasonable and proper for the a) mortgage or charge or transfer by sale gift exchange or otherwise any part of the immovable 3) Any disposal of immovable property by a natural guardian in contravention of sub­section or sub­ 4) No court shall grant permission to the natural 2) except in the case of necessity or for an evident 5) The Guardians and Wards Act 1890shall apply to and in respect of an application for powers specified in sub­sections (3) and of c) an appeal shall lie from an order of the court the court to which appeals ordinarily lie from the the Guardian and Wards Act 1890within the local limits of whose jurisdiction the immovable situate and where the immovable property is situate within the jurisdiction of more than one such court means the court within the local limits of whose minor 13.Welfare of to be paramount consideration.(1) In the appointment or declaration the welfare of the minor shall be the paramount 33. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or 34. The aforestated provisions make it clear that in a matter of custody of a minor child the paramount force. The word “welfare” used in Section 13 of the 35. The subject matter relating to custody of children Marriage Act 195527 is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives the power to the court to make provisions in regard to:custody maintenance and iii) education of minor children. For this purpose the during the pendency of the proceedings and all such considered in Gaurav Nagpal v Sumedha Nagpal26 and 42. Section 26 of the Hindu Marriage Act 1955 proceeding under the said Act the Court could make just and proper with respect to custody maintenance get the custody of a minor child in Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka28 it was held that the only consideration for the court in such 28. 2 SCC 544 minor appear to be well­established. It is well­settled that any matter concerning a minor has to be matter concerning a minor the Court has a special the welfare of the minor and to protect the minor s interest. In considering the question of custody of a minor the Court has to be guided by the only Further referring to para 428 of Halsbury s Laws of England 3rd Edn. Vol. 2129 in Thrity Hoshie Dolikuka s case it was observed as follows :­ “18. In Halsbury s Laws of England 3rd Edn. Vol. 21 Infant s welfare paramount.—In any or upbringing of an infant or the administration of any property belonging to or held on trust for an consideration whether from any other point of view possessed by the father in respect of such custody Even where the infant is a foreign national the court the first and paramount consideration whatever orders may have been made by the courts of any 39. Examining the factors to be considered in matters relating to custody of a minor child in Mausami Moitra 29. Halsbury s Laws of England 3rd Edn. Vol. 21 Ganguli Vs. Jayant Ganguli30 it was held that better financial resources love for child or statutory rights are no doubt relevant but welfare of the child would be minor child are well settled. It is trite that while determining the question as to which parent the care In fact no statute on the subject can ignore eschew or case are concerned. It is no doubt true that father is the welfare of the child being normally the working member and head of the family yet in each case the but cannot be the sole determining factor for the in the background of all the relevant facts and 40. The principles as to custody and upbringing of a minor as delineated in para 809 of Halsbury s Laws of England 4th Edn. Vol. 1329 were also referred in “22. In Halsbury s Laws of England29. Halsbury s Laws of England 4th Edn. Vol. 13 children has been succinctly stated in the following “809. Principles as to custody and upbringing of the court in deciding that question must regard the welfare of the minor as the first and paramount consideration and must not take into consideration father in respect of such custody or upbringing is superior to that of the mother or the claim of the father and the rights and authority of mother and again came up for consideration in Gaurav Nagpal Vs Sumedha Nagpal26 and it was reiterated that the paramount consideration in such matters would be welfare of the child and not rights of parents under a to give due weightage to the child s ordinary comfort contentment health education intellectual development “50. When the court is confronted with conflicting on legalistic basis in such matters human angles are not give emphasis on what the parties say it has to the minor. As observed recently in Mausami Moitra Ganguli30 the court has to give due weightage to the child s ordinary contentment health education intellectual development and favourable surroundings 26. 1 SCC 42 but over and above physical comforts the moral and being. Though the provisions of the special statutes stand in the way of the court exercising its parens 42. A similar view was taken in Gaytri Bajaj Vs. Jiten custody the welfare interest and desire of child has to be of minor children either under the provisions of the emphasised is that while all other factors are undoubtedly relevant it is the desire interest and consideration that must guide the determination court as parens patriae in deciding grant of custody of a ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family custody disputes child primacy over other considerations. The child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the lingers on till the new routine sinks in. The effect of separation of spouses on children psychologically having a significantly negative repercussion in the advancement of the child. While these effects do not nor has any child experienced all these effects the of the parents to evade and the court s intent to circumvent. This right of the child is also based on again following observations in Bandhua Mukti “4. The child of today cannot develop to be a responsible and productive member of tomorrow s his social and physical health is assured to him Every nation developed or developing links its the potential and also sets the limit to the future the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the society will feel happy with them. Neglecting the children means loss to the society as a whole. If Founding Fathers of the Constitution therefore have 15. It hardly needs to be emphasised that a proper education encompassing skill development recreation whose development has a direct impact on the suitable health sound education and constructive environment is the productive key member of the governing the nation. The tools of education environment skill and health shape the child thereby part in the different spheres aiding the public and accompanied by a significant public interest which arises because of the crucial role they play in nation In somewhat similar set of facts in the case of Nil of a minor s mother it was held that the paramount child and the court exercising parens patriae jurisdiction must give due weightage to a child s ordinary comfort contentment health education intellectual development and favourable surroundings as well as minor s mother was a relevant factor required to be 45. Referring to the legal position under the English Law American Law and the Indian Law in Nil Ratan Kundu s case it was observed as follows :­ 24. In Halsbury s Laws of England 4th Edn. Vol. 24 Para 511 custody or upbringing of a minor is in question then in deciding that question the court must regard the minor s welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father s claim in respect of that custody or upbringing is superior to that of the mother or the mother s claim is exercise a choice the court will take his wishes into 25. Sometimes a writ of habeas corpus is sought for custody of a minor child. In such cases also the 26. In Habeas Corpus Vol. I p. 58134 Bailey states crystal he may not be afflicted with the slightest mental moral or physical disqualifications from 29. Halsbury s Laws of England 4th Edn. Vol. 24 Para 511 at p. 217 34. Habeas Corpus Vol. I p. 581 health make the vigilance of the mother indispensable to its proper care for not doubting best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle or waking holier feeling than the most liberal allowance of 27. In McGraththe principles governing custody of minor “52. In our judgment the law relating to custody of a difficult and complex question as to the custody of a is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor the paramount parens patriae jurisdiction and is expected nay bound to give due weight to a child s ordinary comfort education health above physical comforts moral and ethical values cannot be ignored. They are equally or we may say even more important essential and indispensable intelligent preference or judgment the court must consider such preference as well though the final decision should rest with the court as to what is not unfit to be the guardian of his minor children of all the relevant circumstances. The father s fitness cannot override considerations of the welfare of the 57. In our opinion in such cases it is not the “negative custody of his son daughter that is relevant but the that the court should exercise the power to grant or 67. Before about a century in Besant v Narayaniah36 under an agreement custody of two minor sons was with the mother who was staying in England. The father who was residing in Madras could have been lawfully made by an Indian court Upholding the contention allowing the appeal and open to the plaintiff father to apply to His Majesty s “…If he does so the interests of the infants will be considered and care will be taken to ascertain their own wishes on all material points.” (Besant case of a criminal case for an offence punishable under required to be considered by a court of law is character “63. In our considered opinion on the facts and in the circumstances of the case both the courts were duty­ the “character” of the proposed guardian. In in similar this Court almost 64. Thus a complaint against the father alleging and Section 498­A IPC is indeed a relevant factor and a father is convicted it is open to the maternal grandparents to make an appropriate application for In an earlier decision in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker was facing a charge under Section 498­A I.P.C. it was It is therefore seen that in an application seeking a would be to ascertain whether the custody of the child welfare of the child requires that the present custody the care and custody of somebody else other than in extraordinary remedy and the writ is issued where in the circumstances of a particular case the ordinary remedy The power of the High Court in granting a writ in child 51. A writ of habeas corpus is employed in certain cases to enable a party to enforce a right to control be detained by some other person. The Courts however for the interest of the child an order remanding him to custody in a writ of habeas corpus may not be held to be to guardianship vis­a­vis welfare of the child the predominant test for consideration would be what parties while deciding matters relating to custody. The court exercising parens patriae jurisdiction would be comfort contentment health education intellectual development and favourable surroundings as well as physical comfort and moral values paramount 53. The welfare of a child in the context of claims relating to custody guardianship would have to be considered in its widest amplitude. It may include living. However the material considerations though having their place would be secondary. More important would be the stability and security loving and understanding care and guidance and warm and psycho­social as also physical development of the child In a case where facts are disputed and a detailed extraordinary jurisdiction and may direct the parties to of U.P. and 3 others37 Master Manan @ Arush Vs State of U.P. and others38 and Krishnakant Pandey is sought to be relied on behalf of the petitioners has maintainability of habeas corpus petition under Article law and that the said remedy can be availed in 56. The other judgment in the case of Kumari Palak the petitioners is distinguishable on facts inasmuch as it three and half years who had sought to claim her custody had been acquitted in the criminal trial and the and that the mother was no longer alive and that the three years. It is not disputed that the mother of the the respondent no. 4 her maternal grand­father. The Section 3 4 Dowry Prohibition Act 1961 in which the petitioner nos. 2 3 and 4 are named as accused and the 58. The aforementioned facts do not indicate that the manner be said to amount to an illegal and improper claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus which would have a material bearing would be the necessity of the child being provided loving and understanding care guidance and a warm and present case the paramount consideration would be the proper remedy would be before the appropriate 60. This Court in the facts of the case is not inclined to