Good morning everyone, It's an honour to have an opportunity to address such a distinguished

audience.

During the next 10 minutes, ill be discussing the case of Seema kumari v. The state of Bihar. The
case was decided in the high court of Patna.

Facts of the case: The petitioner was married to the late Dr Shashi Shekhar (the Son of the
respondents). On March 11 2010, they were blessed with a baby boy. On July 24 2010, to pursue
their career goals, both the petitioner and her husband enrolled themselves in a post-graduation
course in medicine at two different colleges located in 2 different states. Both the petitioner and
the respondent decided to leave behind the child with the respondents i.e. Father in law and
mother in law of the petitioner. The duration of the course is three years. The petitioner decides
to stay in a hostel alone in katihar (Bihar). In December 2010, the petitioner visits katihar and
stayed with the petitioner for several days. A tragic event occurred on the night of December 3,
2010, when the petitioner was assaulted by her husband after she declined to accompany him to
Dharan, Nepal, for several days.

The petitioner was admitted to a hospital because of the assault on the night of 3rd December.
The petitioner's Husband visited the hospital and requested the hospital to discharge the
petitioner. As the petitioner was still undergoing treatment, the hospital declined his request.
After staying at the hospital for some time, he returned to the petitioner's room early in the
morning on 4th December 2012 and locked himself inside the room. The college administration
believing something to be wrong, informed the police. The local police peeked inside the room
through a window as the door was locked; they saw that the petitioner's husband had committed
suicide by hanging to the ceiling fan. The police registered a case of unnatural death.

Claims made by the petitioner:

The petitioner had claimed that after her late husband's shradh on 9th December 2010. The
accused (Respondents 3 and 4) had taken away the petitioner's child from her and tried to kill
her. They had taken away her personal items and forced her out of the house. Subsequently, she
has filed a complaint against the respondents and their family members under the following
sections: 498-A, 323, 325, 307, 379, 406, 504 and 364, 120 under the Indian penal code and
section 3/4 of the dowry prohibition act.

2) The petitioner had also presented a writ of habeas corpus. The main object behind issuing the
writ of habeas corpus was for the custody of her minor son to her immediately
Claims made by the respondents

The minor child, since his birth, was always under the care and protection of respondents 3 and
4.
2) An allegation has been made against the petitioner that she was having extra-marital relation
with a doctor friend. (The allegation was made based on a transcript of the talk, dated 18th
September 2010).
3) The claim for the child's Custody is made with a malafide intent. There are chances that the
child may be killed, so that the petitioner can marry again without any obstacles.
4) The petitioner Still has two years left before she completes her course, and during this time,
she will be fully busy. Round the clock, she will be engaged in hospital work. Hence, she will not
have enough time to look after the child.
5) Additionally, the child has an ailment related to the heart known as S.V.T. Which causes
restlessness, and in certain emergency conditions, the child needs to be bought to the hospital.
6) Therefore, respondents argued that they would be in a higher standing to take protect the
interest of their grandson, who is the only source of consolation in their life after the death of
their adored son.

Jurisdiction

The claims made by the respondents 3 and 4 stating that their son's death was not natural but
rather the result of a plot devised by the petitioner.​
and​
The claims made by the petitioner with respect to her ill-treatment after her husband's shradh
were both considered to be criminal matters. The court, in this case, advanced that the judgement
will be presented only for deciding the habeas corpus petition and will not have any affect on the
criminal case.

Law

Under Hindu Minority and Guardianship act, 1956​, 2 particular sections deal with the issue at
hand

Section 6 talks about who can be a natural guardian of a Hindu minor along with his property. ​
The natural guardians are: ​
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that
the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother; ​
(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her,
the father; ​
(c) in the case of a married girl—the husband​

Section 13 ​
The welfare of minor is the paramount consideration.—(1) In the appointment of declaration of
any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration. ​
(2) No person shall be entitled to guardianship by virtue of the provisions of this Act or of any
law relating to guardianship in marriage among Hindus if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.

Analysis

When we look at the facts of the case and interpret it as per section 6 of the Hindu minority and
guardianship the case is pretty straightforward. In this case, the child in question is below 5 years
of age, and as per section 6, the mother will have custody of the child ahead of the father.
The same has been reiterated in the case of Manju Tiwari v. Rajendra Tiwari

However, as mentioned above, even with provisions related to section 6, section 13 will have a
stronger threshold in determining who will have the custody of the child. Section 13 states that
in determining who will be the guardian of the minor, the paramount importance will be given to
the welfare of the child. Whosoever the court believe provides better welfare to the child. The
custody will lie with them. ​

Surinder Kaur Sandhu v. Harbax Singh Sandhu: In this case, the father is convicted of a criminal
offence, on the other hand, the mother is very disciplined, self-employed, and she is financially
strong to take care of the needs of her child. Therefore, the court ordered that the mother will
have custody of the child and not the father, even though the child is above 5 years of age.

Sumedha Napgpal v. State of Delhi: In this case, the custody of a child below 5 years of age
was given to the father and not the mother keeping in mind the welfare of the child.

Therefore, from the above provisions, it is clear that section 13 will have an overriding effect
over section 6.