“No Law Can Deprive Child Or Mother From Their Bondage, Love”: Tripura High Court Declares Children’s Home Custody Illegal

The bench held that the 4-year-old daughter’s continued custody at Hope House without judicial sanction amounted to “unauthorized” and “unlawful detention”.

A division bench of Justice Dr. T. Amarnath Goud and Justice S. Datta Purkayastha while directing the State of Tripura to depute a senior police officer to accompany the mother to bring the child back on or before 15-02-2026 observed, “…The Mother and child love and affection is more relevant than anything else. The laws are made for the citizens but citizens are not born for the laws. No law can deprive the child or mother from their bondage, love and affection and the relation cannot be denied. It is the arbitrary and highhandedness of the respondent No.8 and respondent No.9 in separating both mother and child all these years...”.

“In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an 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 conducive to the welfare of the minor. The child is not a chattel or a ball that is bounced to and fro. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons”, the bench further observed.

Accordingly, the court allowed the writ petition filed under Article 226 of the Constitution of India, and ordered the authorities to ensure that the child is returned to Tripura under police supervision.

Senior Advocate P. K. Biswas appeared for the petitioner, and S. M. Chakraborty, A.G. appeared for the respondent.

In the present matter, the petitioner-mother approached the High Court alleging illegal detention of her four-year-old daughter, who had been taken to Christian Medical College (CMC), Vellore for treatment of colostomy-related complications and other serious medical issues.

According to the mother, after treatment commenced, hospital authorities alleged abuse, lodged a complaint under Section 4 of the POCSO Act against the parents, and refused to hand over custody.

The child was subsequently placed under the care of the Child Welfare Committee (CWC), Vellore and later shifted to “Hope House,” a child care institution.

The mother denied all allegations of abuse and contended that she was the biological mother, producing a birth certificate. In the matter ahead, even her motherhood was questioned, leading to a DNA test. The State Forensic Science Laboratory, Tripura conclusively established a 99.999999725% probability that she was the biological mother.

Noting, that the father of the child passed away during the pendency of proceedings, the bench also observed, “Due to the mental harassment, the father of the minor Mr. Dwaipayan Chakraborty had expired and the petitioner suffered serious mental agony. The minor daughter is the last hope of the petitioner to keep her breathing. In view of above discussion, we have no hesitation to hold that once the 8th respondent CMC has treated the child, it responsibility rests. Thereafter, shifting of the child from the custody of the 8th respondent to respondent No.9, the Hope House is the one without obtaining any judicial permission from this Court as the matter was pending before this Court since, 2022 and the respondents were put to notice in this regard. This Court holds that the action of the respondent No.8 in not obtaining the necessary permission to shifting the custody of the minor child, namely, Pratiti Chakraborty to the respondent No.9, the Hope House is unauthorized, arbitrary and Ultra vires. Similarly, the Hope House cannot keep the custody of the child and without there being any orders from this Court in this regard and more so, keeping the custody of the child, needs to be treated by the respondent No.9 as an unlawful detention of the minor child xyz”.

Although a preliminary objection was raised regarding territorial jurisdiction, the High Court held that the cause of action originated in Tripura and continued thereafter. The Court observed that the case concerned a minor child’s reunion with her widowed mother and could not be defeated on technicalities.

The Court conducted virtual interaction with the child and examined multiple medical reports. While Vellore authorities expressed concerns about disruption of treatment, the Tripura team’s interaction indicated that the child appeared physically and mentally stable.

Importantly, the Bench noted that under Section 6 of the Hindu Minority and Guardianship Act, the mother is the natural guardian of a minor child of tender years. The Court held that once it is established that the biological mother seeks custody, her custody is presumed lawful unless strong reasons exist to deny it.

It strongly criticised the shifting of custody from CMC to Hope House without obtaining judicial permission, especially when the matter had been pending before the High Court since 2022.

Cause Title: X v. The State of Tripura WP(C) (HC) No.14 of 2022

Appearances:

Petitioner: P. K. Biswas, Sr. Advocate, P. Majumder, R. Nath, P. Biswas, Advocates.

Respondents: S. M. Chakraborty, A.G., R. Datta, P.P., S. Lodh, S. Majumder, Advocates.

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